Z v N (No 2) [2005] NSWCA 316

New South Wales Court of Appeal

CITATION: Z v N (No 2) [2005] NSWCA 316

HEARING DATE(S): 22 August 2005

JUDGMENT DATE: 15 September 2005

JUDGMENT OF: Mason P at 1; Handley JA at 19; Hodgson JA at 21

DECISION: Summons dismissed with costs

CATCHWORDS: EVIDENCE - private hearing of New South Wales Crime Commission - failure to answer question - reasonable excuse under s18(2) New South Wales Crime Commission Act 1985 - claim that disclosure would reveal the identity of an informer - law of public interest immunity - fear of reprisal - costs. (ND)

LEGISLATION CITED: New South Wales Crime Commission Act 1985

Z v N [2004] NSWCA 445 CASES CITED: Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423

PARTIES: Z v N

FILE NUMBER(S): CA 40304/05

Claimant: A Howen COUNSEL: Opponent: P Singleton

Claimant: Bolzan & Dimitri, Leichhardt SOLICITORS: Opponent: J M Giorguilti, Sydney

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC 10439/05

LOWER COURT JUDICIAL OFFICER: Johnson J

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40304/2005

MASON P HANDLEY JA HODGSON JA

Thursday 15 September 2005

Z v N (No 2) JUDGMENT

1 MASON P: The claimant is a legal practitioner who has been summoned to appear at several private hearings of the New South Wales Crime Commission. The presiding member required the claimant to furnish the name and address of a former client and the name of a mutual friend of the former client and the claimant. On each occasion the claimant declined to answer the question, asserting that he had a "reasonable excuse" under s18(2) of the New South Wales Crime Commission Act 1985. 2 The claimant invoked client legal privilege when first called before the Commission. This ground of objection to divulging the limited information that was sought was overruled by the Commission. The Commission's decision was upheld on appeal to Grove J and subsequently in this Court (see Z v N [2004] NSWCA 445). 3 There was a further private hearing at which the claimant was represented by counsel. He gave evidence in support of two further grounds advanced as a reasonable excuse for declining to answer the same questions. 4 First, it was submitted that disclosure would reveal the identity of an "informer" as that term is known in the law relating to public interest immunity (cf Cain v Glass (No 2) (1985) 3 NSWLR 230). Second, the claimant expressed a fear of reprisal. 5 The Commissioner decided that the claim of entitlement to refuse to answer the questions was not justified and notified the claimant accordingly, with reasons. 6 The claimant exercised his right to approach the Supreme Court for an order of review (cf s19(4)). Johnson J heard the application. On 22 March 2005 his Honour affirmed the decision of the Commissioner, giving lengthy reasons for dismissing the Summons. 7 The claimant sought leave to appeal to this Court. There was a full hearing as on an appeal. It took place in closed court. 8 The Commission is an investigative, not a judicial, body. On an application to the Supreme Court for an order of review, the Supreme Court may, in its discretion, make an order affirming the decision or setting aside the decision (s19(4)). The nature of the "review" under s19(2) is discussed in Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423. 9 In the present case the material relied upon by the claimant is that which was before the Commission. 10 The claimant does not contend that merely because there may have been a public interest immunity that would have permitted and/or required him not to answer the questions in open court, there was a "reasonable excuse" for withholding the information from the Commission at the private hearing. Nevertheless, he submits that the former client acted as an "informer" in the particular circumstances. It follows, so the argument goes, that the policies of the law that underpin the informer rule armed the claimant with a reasonable excuse in the circumstances. 11 Two mixed questions of law and fact were tendered to Johnson J in this context. The first was whether the former client was an "informer"; the second was whether this translated into a right and/or duty in the claimant to maintain the secrecy of the former client's identity. 12 The relevant facts as presented to the Commission are set out and closely analysed in the reasons of the primary judge. To expose them in a published judgment would defeat the interests of all concerned and thereby frustrate to the interests of justice itself. It is unnecessary to do so given that leave to appeal should be refused for the reasons that follow. 13 As to the "informer" status of the former client, the claimant advanced a contestable reading of par 66 of his Honour's reasons in support of an argument that his Honour failed properly to apply the reasoning of the South Australian Court of Criminal Appeal in R v Mason (2000) 74 SASR 105, 112 A Crim R 266. It is unnecessary to resolve this issue, because it is clear that the primary judge accepted the possibility that an "informer" relationship was involved on the facts (see par 64). 14 In my view, the nub of his Honour's reasoning was the conclusion that divulging this information in the context of this particular inquiry at a private hearing of the Commission with its statutory secrecy provisions supported by criminal sanctions did not arm the claimant with a "reasonable excuse" for refusing to answer the questions. It is unnecessary to consider the exceptional circumstances in which it might possibly be otherwise. I see no reason to doubt the correctness of the particular decision in its particular factual context. 15 In particular, I see no basis for inferring that comparable sources of criminal intelligence might dry up in consequence of the enforced disclosure sought in the instant case. It is not unreasonable to proceed on the basis that the Commission will exercise every caution to maintain the secrecy of its own investigations and the protection and encouragement of its own sources, including persons placed in the situation of the claimant. 16 The alternative ground of "reasonable excuse" advanced before the Commission, before Johnson J below, and in this Court was based upon an expressed fear of reprisal. This issue was resolved adversely to the claimant on the basis of the evidence. I am unpersuaded of any error in the analysis of Johnson J. 17 In my view, costs should follow the event. It is recognised that the claimant's argument relied, in part, upon the principles of public interest immunity, as distinct from a private right or interest either of the claimant or the claimant's former client. Nevertheless, the issues were fully addressed at first instance in a judgment with which I am in substantial agreement. No new issues were agitated in this Court. 18 Accordingly, the summons should be dismissed with costs. 19 HANDLEY JA: I agree with Mason P. Although the Court is dismissing the summons on the merits the procedure adopted by the claimant should not pass without comment. When the Crime Commission first asked the claimant to answer the questions he objected to answering on the ground of legal professional privilege. This objection was overruled by the Commission and its decision was sustained by Grove J and this Court (Z v N [2004] NSWCA 445). He then took further objections which were overruled by Johnson J and now by this Court. 20 The opponent did not object to the further proceedings on the ground that they were barred by res judicata or as an abuse of process in accordance with the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. We have not heard argument on these points but I have the firm provisional view that the claimant should have taken all his objections at the same time and that a person in his position is not entitled to litigate his objections by instalments. In the future persons in the position of the claimant would be well advised to bring all challenges to a direction of the Commission in the one proceeding at the one time, at the risk of having further proceedings based on other objections summarily dismissed as res judicata or under the Anshun principle. 21 HODGSON JA: I agree with Mason P. **********