New South Wales Court of Appeal CITATION : NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 FILE NUMBER(S) : CA 41076/01 HEARING DATE(S) : 7 May 2002 JUDGMENT DATE : 20 May 2002 PARTIES : NSW Commissioner of Police - Claimant Paul Edward TUXFORD and Ors - Opponents JUDGMENT OF : Spigelman CJ at 1; Ipp AJA at 2; Brownie AJA at 3 LOWER COURT JURISDICTION : District Court LOWER COURT 8312/00 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER : Mr G Bartley - Claimant COUNSEL : Mr J Rowe - Opponents 1,2 and 3 - submitting appearance Opponent 4 I V Knight - Claimant SOLICITORS : Oates & Smith - Opponents 1, 2 and 3 I V Knight - Opponent 4 CATCHWORDS : Subpoenas - abuse of process - subpoena a substitute for discovery. - Subpoenas - forensic purpose - duty of party procuring issue of subpoena to justify purpose. - Subpoenas - forensic purpose - duty of party procuring issue of subpoena to justify purpose - when objection may be taken. LEGISLATION CITED : Listening Devices Act 1984 Telecommunications (Interception) Act 1979 (Cth) The Commissioner for Railways v Small (1938) 38 SR at 574, 575 R v Saleam (1989) 16 NSWLR 14 at 17-18 CASES CITED: Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681 Air Canada v Secretary for State for Trade (1983) 2 AC 394 at 439 and 453 Alister v The Queen (1984) 154 CLR 404 at 414 Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498 DECISION : Order in terms of paragraph 1 of the amended summons, opponents to pay the costs of the claimant incurred in the District Court in relation to the notice of motion and in this Court. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 41076/01 SPIGELMAN CJ IPP AJA BROWNIE AJA 20 May 2002 NSW COMMISSIONER OF POLICE v Paul Edward TUXFORD AND OTHERS Judgment 1 SPIGELMAN CJ: I agree with Brownie AJA. 2 IPP AJA: I agree with Brownie AJA. 3 BROWNIE AJA: The claimant seeks an order in the nature of certiorari, removing into this Court the record of the District Court, concerning an unsuccessful application made by the claimant to set aside a subpoena requiring him to produce documents, which subpoena was issued at the request of the first, and third opponents (hereafter "the opponents"). The claimant seeks to have quashed the order made in the District Court, and he also seeks declaratory relief. 4 As plaintiffs, the opponents sued the State of New South Wales in the District Court. The hearing proceeded on the basis that they were members of the NSW Police Service, seconded to "Task Force BAX". They claimed to bring the action on behalf of themselves and all persons who were members of the Police Service, and seconded to Task Force BAX. 5 By their further amended statement of ordinary claim the opponents identified four named persons as "the senior officers": they pleaded that on 24 October 1997 these four senior officers, together with officers of the Police Service, entered premises from which Task Force BAX operated and searched those premises; that the senior officers directed the opponents to remain in "the room", and not to communicate with anyone; that the senior officers directed the opponents to report to other police premises at Strawberry Hills between 8 am and 6 pm on the days between 26 and 29 October 1997; and that the senior officers did not inform the opponents or other members of Task Force BAX of any allegation of impropriety made against them before acting in the way just summarised. The opponents then pleaded that the conduct of the senior officers constituted the torts of negligence, false imprisonment, and intentional infliction of nervous shock. They claimed, amongst other things, exemplary damages. 6 A notice of grounds of defence was filed, admitting some but not all of the factual matters pleaded, and putting in issue all allegations of wrongful conduct. It asserted that the opponents had been told on 24 October 1997 that Task Force BAX was to be the subject of a full comprehensive audit and investigation regarding its operation and management to test the integrity of its management systems and processes, the performance and competencies of personnel attached to it, the integrity and appropriateness of its investigations and prosecutions, and its alignment to its terms of reference. The defendant went on to assert that the directions given to the opponents were directions with which they were obliged to comply. 7 The subpoena in question required the claimant to produce the documents listed in the Schedule to the subpoena. The Schedule commenced with the words: "The following documents created or prepared between 1 February 1997 and 1 June 1998". There followed sixty-six numbered paragraphs. Paragraph 1 was in these terms:- "(1) All briefing papers prepared, approved, or received by the following members of the NSW Police Service relating to an investigation into the activities of Operation BAX (SIU):- Originals or copies in the care, custody or control of the following members of the Police Service:- (a) Commissioner Peter RYAN; (b) Assistant Commissioner Jeff JARRETT (c) Assistant Commissioner Mal BRAMMER; (d) Assistant Commissioner Clive SMALL; (e) Chief Superintendent Rod HARVEY; (f) Assistant Commissioner Christine NIXON; (g) Inspector Rick CAMPBELL; (h) Superintendent John URE: (i) Arthur ABRAHAM; (j) Assistant Superintendent John DOLAN; (k) Chief Inspector MATHEWS (l) Inspector Phillip DOUGLAS; (m) Inspector Van der GRAF; (n) Commander – Special Services Group. Originals or copies filed or maintained in the following offices of the Police Service:- (a) Commissioners Office; (b) Internal Affairs; (c) Crime Agencies; (d) Human Resources; (e) Comprehensive Audit Section; (f) Operation GYMEA;" 8 Broadly speaking, the succeeding paragraphs followed this general format, identifying documents by a description and then commonly referring to persons who might have the documents mentioned, or offices where they might be found. Sometimes, there was not a list of persons, and sometimes there was not a list of offices. Sometimes only one office was identified. In contrast, paragraph 61 called for the production only of "All Restorative Justice Group Records relating to Operation BAX and its members". 9 The claimant filed a notice of motion, seeking an order setting aside the subpoena, and filed an affidavit in support, sworn by Sergeant Capper, who within the Police Service was responsible for the co-ordination of responses to subpoenas. The notice of motion specified three bases for setting aside the subpoena: that it was an abuse of process, that it was oppressive, and that it lacked a legitimate forensic purpose. 10 The point taken by Sergeant Capper's affidavit, upon which topic he was extensively cross-examined, was that the subpoena called for the production of "all" documents of various descriptions, including "originals or copies" of those documents in the care, custody or control of various named persons or filed or maintained in various named offices. Much of the cross-examination of Sergeant Capper was directed to demonstrating that there were some protocols established within the Police Service such that, if the protocols were followed, it should be relatively easy to identify and locate each document, of the description contained in the subpoena. However, as he said, that was not what the subpoena called for. 11 Some of the cross-examination of Sergeant Capper, and some of the submissions made in the District Court and in this Court proceeded on the basis that the subpoena should be read down so that, for example, paragraph 1 required the production of all briefing papers answering the description set out, originals or copies of which were in the care, custody or control of the persons mentioned, or originals or copies of which were filed or maintained in the offices mentioned. 12 Even read down in this way, the subpoena calls for "all" documents, and it refers explicitly to "originals or copies" held by or for the person named, or in the offices named, and it is neither right to say that a person served with a subpoena can read it down in this manner, nor that a party who requests the issue of the subpoena can say to the recipient that the subpoena should or even might be read down in this way. In the ordinary course of events, a subpoena is a peremptory order of a court, to be obeyed unless the court makes an order to the contrary. It should be framed in terms of sufficient precision and certainty, to enable the recipient to know what he or she must produce, and to enable the court to give a just ruling, if there is to be a suggestion that the recipient should be punished for failing to produce all of the documents called for. 13 The claimant's first point, that the subpoena was couched in terms that were too wide, and demanded far too much work to be done, locating and then collecting the documents called for, was in my view amply made out. Paragraph 1 of subpoena referred to certain briefing papers, and sought the production not only of the originals of these papers, but also all copies held by fourteen named persons or at six named offices. Sergeant Capper spoke of the difficulty, not so much in identifying, locating, collecting and producing the originals or a copy or some copies of these documents, but of the difficulties in identifying, locating and retrieving all of the copies mentioned in the subpoena. 14 The learned primary judge, Sidis DCJ, accepted the submission advanced by the opponents, that this was an inadequate response to the subpoena given the seriousness of the allegations made in the pleadings: the Police Service had protocols which, if observed, should have enabled Sergeant Capper or some other member of the Police Service to identify and then locate the original or a copy or some copies of each of the documents. That was correct, but the subpoena went further, requiring all copies of these documents, held by or for the persons mentioned, of in the offices mentioned, and the protocols did not go that far. 15 A number of paragraphs of the subpoena, including paragraph 1, for the production of copies of records filed or maintained in the office of "Operation GYMEA". Sergeant Capper spoke of this as a joint task force involving the State Crime Commissions and police services of the various States throughout Australia, focussed upon organised crime. He said that to comply with the terms of the subpoena, so far as concerned the records of this task force, would involve searching in excess of a million documents, and that there were hundreds of police officers who might hold copies of documents. 16 The subpoena also referred, in several of its paragraphs, to records held at the office of "Operation ANCRUM" and "Operation JADE". The former reference is to a task force which apparently investigated the conduct of Task Force BAX, and the latter a body which inquired into the findings of Operation ANCRUM. Sergeant Capper said that there were fifty-eight archive boxes of material held in relation to Operation ANCRUM, which records might include information that also related to Operation GYMEA. Various matters were put to him in cross-examination, but the central thrust of his evidence on the point remains undisturbed: to comply with the subpoena, as drafted, required this mass of material to be examined. 17 No attempt was made, either in the District Court or in this Court, to justify the demand for the production of all of the copies of these documents, and on this ground alone, given the numbers of documents involved, and the fact that they are or may be located in so many places, means that the subpoena was oppressive. 18 The claimant also contended that the subpoena was an abuse of process in that it sought what amounted to discovery from the claimant. For that purpose, and in the context of this particular case, the claimant was content to be treated as an interested party, rather than as a stranger to the principal litigation. 19 It is plain beyond argument that a subpoena cannot be used as a substitute for discovery: The Commissioner for Railways v Small (1938) 38 SR 564 at 574. Unhappily, in the course of the debate in the District Court, this question became obscured by the attention given to the limitations now imposed by the District Court Rules in relation to discovery. Whatever the position in relation to discovery more generally, for all that appears, if in this case the opponents had been able to justify it, they might well have been able to obtain an order for discovery against the defendant, pursuant to provisions of Part 22 rule 7. However, all those questions seem to me to be irrelevant. The practical effect of the subpoena was, the claimant contended, a substitute for discovery; and that contention seems entirely justified on the material before the Court. 20 Next, the claimant contended that the subpoena lacked a legitimate forensic purpose. Once again, it is plain beyond argument that, if documents are produced on subpoena, and objection is taken to their being inspected, inspection should not be permitted unless and until the party who procured the issue of the subpoena identifies a legitimate forensic purpose. In that context it is said that a party is not entitled to go on a fishing expedition, nor should the court do so: Small at 575; R v Saleam (1989) 16 NSWLR 14 at 17-18; and Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 at 681. See too Air Canada v Secretary for State for Trade [1983] 2 AC 394 at 439 and 453 and Alister v The Queen (1984) 154 CLR 404 at 414. 21 However, it is not necessary for the recipient of a subpoena to actually produce the documents to the court, and then to argue that inspection should not be permitted. The respondent may instead move to set aside the subpoena: Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498. 22 In that case, at 504, Barr AJ, as he then was, said:- "It is the duty of the Court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought and to refuse access unless such an identification is made". 23 The opponents did not, either in the District Court or in this Court, attempt to do this, except in terms of the utmost generality, and without reference to the numbered paragraphs of the subpoena. In the District Court, it was apparently thought that it was the obligation of the judge herself to go through the paragraphs of the subpoena, and to give rulings on the sixty-six paragraphs. However, it was the obligation of the opponents to justify the subpoena, and in a case such as the present one, to do it by reference to the sixty-six paragraphs, either individually or, where appropriate, by grouping different paragraphs together. 24 I have summarised the issues, raised by the pleadings, above: claims for damages for personal injuries in negligence, for false imprisonment, and for intentionally causing nervous shock; there was also a claim for exemplary damages; and there was a defence putting in issue the allegation that the senior officers mentioned had acted unlawfully. It is easy to see that an issue might arise upon the ultimate trial as to the lawfulness of what the senior officers and other officers of the Police Service did. Nevertheless, the obligation of the opponents was to point to the legitimate forensic purpose of the subpoena in the manner stated by Barr AJ. 25 Paragraph 1 is set out above. In brief, it required the production of briefing papers relating to an investigation into the activities of Operation BAX, created or prepared between 1 February 1997 and 1 June 1998. The "raid", as the opponents described it, and the consequent alleged false imprisonment occurred in October 1997. The evidence does not disclose just what might be embraced by the expression "briefing papers" or the expression "Operation BAX (SIU)", but no submissions were advanced about these questions. The opponents addressed no submissions, directed to paragraph 1 particularly. Indeed, apart from cross-examining Sergeant Capper, principally on the question of how documents might be identified, located and retrieved, they proffered no evidence. 26 One can readily visualise that some documents which might accurately be described as briefing papers relating to the investigation mentioned might throw some light on the issues raised by the pleadings, but the opponents need to go further. 27 In the language of Jordan CJ in Small at 575, the opponents were not entitled to procure the issue of the subpoena for the purpose of fishing, that is, endeavouring not to obtain evidence to support their case, but to discover whether they had a case at all, or to discover the nature of the case of the defendant. In the language of Lord Wilberforce in Air Canada at 439 there must be something beyond speculation, some common ground for belief that takes the case beyond a mere fishing expedition. 28 Counsel for the opponents said, at different points, that his clients believed or that they suspected that the mass of documents called for by the subpoena, considered as a whole, would show that the senior officers mentioned had no basis, or no proper basis for acting as they did, so that the detention of the opponents amounted to a false imprisonment. However the matter was taken no further. There was nothing in the pleadings or in the evidence that supports the mere statement from the bar table of a belief or suspicion held. Further, nothing was said, concerning the documents called for in paragraph 1. Practically speaking, the opponents left it to us to work out for ourselves what the documents called for might show. In my respectful view, the proposition has only to be stated in full to be seen to be unacceptable. 29 Paragraph 2 called for the production of "all electronic messages approved prepared or received by the following members of the NSW Police Service relating to the investigation into the activities of Operation BAX (SIU)", and it then identified fifteen persons, and seven offices. The expression at the commencement of the Schedule fixed the period in question as that between 1 February 1997 and 1 June 1998. On the material before us, it seems that the subpoena was oppressive, and one cannot infer that this part of the subpoena had a legitimate forensic purpose. One can see that many of the documents might have that purpose, but some of them, and perhaps a large number of them will not. The opponents have not discharged the onus concerning their legitimate forensic purpose. Further, the evidence of Sergeant Capper points to the oppressiveness of the subpoena: many, perhaps most of the documents mentioned can be readily enough identified and located, but others, for example e-mails, are not capable of ready identification. On the evidence, a great amount of work is needed to identify them, and then to retrieve them. 30 Paragraph 3 refers to "all briefing papers supplied to the Minister for Police by the Police Service relating to the investigation into the activities of Operation BAX", held in the office of the Commissioner for Police. It requires the production of all the originals or copies filed or maintained in that office. Subject to this, and subject to a possible question about the meaning to be attached to the expression "briefing papers", about which no submissions were advanced, I am inclined to think that this fragment of the subpoena could have been supported, but there may be a question as to its legitimate forensic purpose, not so far explored. 31 Paragraphs 4 to 14 and 29 refer to various records which one might expect to have been brought into existence concerning applications made under the Listening Devices Act 1984 or the Telecommunications (Interception) Act 1979 (Cth), all in relation to a search warrant. As a general proposition, it seems likely that documents of this nature might throw light on the issue of the lawfulness of the supposed detention of the opponents, but the subpoena is still cast in terms of such generality as to be oppressive, so that this part of the subpoena at least should be set aside. Thus, paragraphs 4, 5, 7-11, 13 and 14 use the expression "relevant to any member of "Operation BAX (SIU)"; paragraph 12 refers to "all transcripts of recorded telephone messages between any member of Operation and any other person"; and the subpoena covers the period of sixteen months, already mentioned. 32 Paragraph 15 requires the production of "all profiles prepared by the NSW Police Service in relation to any member of Operation BAX (SIU) – (supply staff list)". It may be that the drafter of the subpoena intended that the subpoena omit the words "supply staff list" and that some list be inserted into the subpoena before it was issued, but this did not happen. In its present form the paragraph simply cannot stand, but assuming that these three words had been omitted and that a list of names had been inserted, following the general pattern of the other paragraphs of the subpoena, one is still left to wonder at the legitimate forensic purpose. What precisely is a "profile" in this context? How would the production of these profiles go to the resolution of any of the issues raised by the pleadings? 33 Paragraph 16 is simply breathtaking. It reads: "All surveillance logs including all written, typed or electronically recorded and any source evidence relied on in making the said surveillance logs", and it then refers to five named offices. There is no limitation at all as to the persons the subject of the surveillance, nor of the expression "any source evidence relied on in making the said surveillance log". One hardly needs to look at the evidence of Sergeant Capper. This paragraph, by itself, is plainly oppressive, and can hardly be thought to have a legitimate forensic purpose, unless appropriately limited. 34 Given the above findings, I propose to deal with the succeeding fifty paragraphs of the subpoena only very briefly, merely noting again that the opponents did not attempt to justify any of the individual paragraphs, as distinct from attempting to justify the subpoena globally, and in general terms. Further, the cross-examination of Sergeant Capper was mostly directed to the questions concerning the identification and retrieval of the documents mentioned, without going on to examine the questions involved in the retrieval of all copies of the documents. 35 Some of the paragraphs of the subpoena appear to require the claimant to identify likely or possible witnesses, for example paragraphs 19, 22, 25, 43, 55 and 56. 36 Other paragraphs are on their face both oppressive and apparently indicative of a lack of legitimate forensic purpose: paragraphs 20, 28 and 31. Thus, paragraph 20 referred to the duty books and diaries of "all police involved in the investigation into the activities of Operation BAX ". It followed the usual general format, but included the words "including but not limited to" the persons and offices then named. Paragraph 28 referred to the duty books, official note books or any other hand written records "for all staff involved in Operation ANCRUM", without limiting those documents to Operation ANCRUM, or any other particular topic. Paragraph 31 referred to records of "any conversation between any member of Task Force BAX and any investigation team member" in a specified period. 37 Others seem to raise questions about the legitimacy of the forensic purpose of the subpoena: paragraphs 45 – 47, which referred to various documents "from 23 October 1997 to date". 38 Paragraph 54 refers to the duty books for the opponents "and other plaintiffs". Given that the opponents claim to be conducting the litigation as representative of others, who had not been identified at the time of the issue of the subpoena, this is plainly impermissible. 39 I have quoted paragraph 61 at [6] above. On the material before us, it is not possible to not know what the forensic purpose of this paragraph was. The opponents have not discharged the relevant onus. 40 The claimant also contends that he was denied procedural fairness in that Sidis DCJ failed to consider the three grounds urged before her for setting aside the subpoena, or that she failed to give any, or any adequate reasons. Her Honour said:- "The motion is dismissed. The reasons why the motion is dismissed are as follows. I heard evidence at length on Monday 15 October 2001 from Sergeant Capper concerning what he said were the difficulties faced by the Commissioner in complying with the requirements of the subpoena. I also heard him cross examined as to those difficulties. Having heard that evidence I was not persuaded that the difficulties were such that, given the serious issues that arise in these proceedings, compliance with the subpoena constituted an unduly onerous obligation on the part of the Commissioner for Police. It became evident from the evidence of Sergeant Capper that there are a number of systems that prevail for the recording and filing of documents and for the tracking of their progress within the Police Service, so that the existence of documents is known and their whereabouts is known. At the conclusion of the proceedings on 15 October 2001 in order to assist the Commissioner I directed that the Commissioner provide the plaintiffs with the lists referred to by Sergeant Capper in his evidence and with lists of materials stored in data bases. I directed that those lists be provided by 1 pm on 17 October 2001, so that the plaintiffs could identify from those lists the precise documents that they wanted to have produced. In that manner I anticipated that the task of retrieving documents might be ameliorated as far as the Commissioner was concerned. I am informed today that the lists have not been provided to the plaintiffs and that further submissions wish to be put before me on behalf of the Commissioner. I heard submissions at great length on 15 October 2001 and I do not think that there is anything further to be said. The motion is dismissed, the applicant is to pay to respondent's costs." 41 It appears from the record before us that her Honour was vexed and perhaps provoked by the course of events at the hearing before her. Whether or not this is accurate, she announced conclusions, but did not express in her judgment the reasons for those conclusions. She did not expressly deal with the difficulties raised by the subpoena, requiring "all" documents of various descriptions to be produced, including "originals or copies". She did not mention the questions of abuse of process and legitimate forensic purpose. 42 The opponents replied, correctly, that it would be sufficient if the reasons for judgment appeared from what had been said in address, but in fact one cannot find any reasons, or any adequate reasons expressed by her Honour in the transcript of what was said in argument, as distinct from submissions advanced by the opponents as to why the submissions of the claimant might have been rejected. At pages 4 – 5 of the transcript dated 10 October 1997 (apparently in error, since the hearing seems to have occurred on 15 October) her Honour appears to have regarded the contention that there was great difficulty involved in identifying and retrieving the relevant documents as not well founded, but she does not appear to have dealt with the question raised by the claimant through Sergeant Capper, concerning the identification, location and retrieval of all copies and originals, as mentioned in the subpoena. 43 Further, the direction made by her Honour, at the conclusion of the reasons for judgment set out above, that the claimant produce various lists, seems to impliedly acknowledge that there was some real merit in not requiring the claimant to do what the subpoena ordered him to do. 44 I propose that there be an order made in terms of paragraph 1 of the amended summons, and that the opponents pay the costs of the claimant incurred in the District Court in relation to the notice of motion, and in this Court. In the circumstances, it does not seem to me to be necessary or appropriate to make any declaration. ********** 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.