Harvey and Anor v State of New South Wales [2005] NSWSC 1390

New South Wales Supreme Court

CITATION : Harvey and Anor v State of New South Wales [2005] NSWSC 1390

HEARING DATE(S) : 16 June 2005

JUDGMENT DATE : 16 June 2005

JURISDICTION : Equity Division

JUDGMENT OF : Johnson J at 1

DECISION : Access to documents granted.

CATCHWORDS : PRACTICE AND PROCEDURE - subpoena - documents produced - whether inspection ought be permitted - apparent relevance - privacy considerations - relevance of implied undertaking not to disclose contents for unrelated purpose

LEGISLATION CITED : Evidence Act 1995

National Employers' Mutual General Association Limited v Waind & Hill (1978) 1 NSWLR 372 Moage Limited v Jagelman (2002] NSWSC 953 CASES CITED : British American Tobacco Ltd v Cowell (No. 2) (2003) 8 VR 571 Ainsworth v Hanrahan (1991) 25 NSWLR 155 Blanch v Deputy Commissioner of Taxation [2004] NSWCA 461

Bruce Harvey (First Plaintiff) PARTIES : Bruce Harvey Enterprises Limited (Second Plaintiff) State of New South Wales (Defendant)

FILE NUMBER(S) : SC 5051/01

Mr F Donohoe (Plaintiffs) COUNSEL : Mr P Menzies QC; Mr D Mallon (Defendant) Mr P Singleton (Board of Studies of NSW)

Carneys Lawyers (Plaintiffs) SOLICITORS : Crown Solicitor's Office (Defendant)

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

Johnson J

16 June 2005

5051/01 Bruce Harvey and Anor v State ot New South Wales JUDGMENT (On application for inspection of documents produced on subpoena; see p 253 of transcript for 16/06/05) 1 JOHNSON J: The Plaintiffs have issued a subpoena for production of documents directed to the Office of the Board of Studies of New South Wales. The Board of Studies by Notice of Motion sought, in the alternative, firstly an order that the subpoena be set aside or secondly, an order that inspection by the parties not be permitted. 2 On 15 June 2005 I gave judgment on the first application and declined to set the subpoena aside. The Board of Studies produced the documents in answer to the subpoena and was granted leave to file in court and to read an affidavit of David Murphy sworn 6 June 2005 with respect to the question of inspection of the documents. 3 No claim of public interest immunity has been made in relation to the documents. 4 The issue that is presently relevant involves the second step identified in the judgment of Moffitt P in National Employers' Mutual General Association Limited v Waind & Hill (1978) 1 NSWLR 372 at 382 and following. The relevant legal principles applicable to this stage involve the exercise of discretion to permit inspection with the question being whether the documents have apparent relevance to the issues in the proceedings: Waind & Hill at 385E. 5 Factors which are relevant to the second stage include not only the apparent relevance of the documents, but aspects of privacy as well. In Waind & Hill, Moffitt P said at 385F: "However, the limitation upon the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it or use it in cross examination.