Commissioner of Police v Jones [2006] NSWSC 508

New South Wales Supreme Court

CITATION : Commissioner of Police v Jones [2006] NSWSC 508

HEARING DATE(S) : 26 May 06 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 05/26/2006

DECISION : Decline application to vary, or to relieve the defendant from, undertaking. Expedite hearing.

CATCHWORDS : PROCEDURE – Injunctions – Expedition – Interlocutory injunctions and undertakings – interlocutory undertaking not to publish documents in which plaintiff claims public interest immunity – application for release from undertaking to permit issue of subpoenas, production of documents on discovery and provision of particulars in related defamation proceedings – where release may irretrievably prejudice plaintiff and proceedings can be expedited – modification of or release from undertaking refused and expedition ordered.

PARTIES : Commissioner of NSW Police (plaintiff) Alan Jones (defendant)

FILE NUMBER(S) : SC 2217/06

COUNSEL : P Singleton (plaintiff) B Burke (sol) (defendant)

SOLICITORS : Crown Solicitor (plaintiff) Banki Haddock Fiora (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Friday 26 May 2006

2217/06 Commissioner of Police v Alan Jones JUDGMENT (ex tempore) 1 HIS HONOUR: In these proceedings ("the Equity proceedings"), the plaintiff claims that documents in the possession of the defendant are the subject of public interest immunity. While I understand that the defendant will ultimately dispute this claim, I do not understand it to be in contention that there is a serious question to be tried as to whether there is a valid claim for public interest immunity. 2 The defendant has, in the course of an interlocutory application, given an undertaking to the court that he will not publish the documents which he understands to be sought by the plaintiff ("the documents in question"), or the contents of such documents, without first giving the plaintiff 24 hours written notice of his intention to do so. 3 The defendant is also a defendant in proceedings in the defamation list ("the Defamation proceedings"), and he wishes to be released from the undertaking given in the Equity proceedings for three purposes. 4 The first is so that he may issue, both in the Equity proceedings and in the Defamation proceedings, subpoenas to the Commissioner of Police for production of documents. It is anticipated at least that information gained from the documents in question would be used to draft the subpoenas, and perhaps that the schedule to the subpoenas would identify or refer to some of the documents in question. 5 The second purpose for which release from the undertaking is sought, is to enable the defendant to produce the documents in question, which have been identified and referred to in his list of documents by way of discovery in the defamation proceedings, for inspection by the plaintiff in those proceedings. I am informed that plaintiff's counsel in those proceedings has already once inspected the documents, as I understand it before the undertaking was given, but that copies of them have now been sought. 6 The third purpose for which the application is made is so that the defendant may, in the defamation proceedings, particularise his defence, which it is anticipated will at least involve reference to the documents in question. 7 It seems to me that while there is on foot a seriously arguable case that the documents in question are subject to public interest immunity, it might well occasion irretrievable and irremediable prejudice to the plaintiff in these proceedings if any further disclosure of those documents takes place. 8 For that reason I think it is essential that the issues in the present proceedings be expedited, and determined as soon as possible, so that the defamation proceedings may thereafter proceed once it is known whether or not the defendant is entitled to use the documents in question in any of the ways he seeks. 9 As things stand it may well be that a subpoena or notice to produce can be formulated in such a way that, while it may use information gained from the documents in question, it does not amount to a publication of the documents or their contents. Of course, if it sets out parts of the documents, or paraphrased parts of the documents, that would be a publication of the document or its contents; but a mere reference to or identification of the documents would, I think, not be. 10 So far as provision of documents on discovery is concerned, while it might be said that the defendant is compelled by law to give discovery, and that such a legal obligation normally overrides duties of confidence, that is not so if there is a valid claim for public interest immunity, which permits otherwise discoverable documents to be withheld from production for inspection. 11 It seems to me that particulars of a defence in defamation proceedings can probably be formulated, even if it requires use of information gained from the documents in question, without it being necessary to publish the documents in the particulars, or to paraphrase them in a way which would amount to publication of their contents. 12 But to the extent that there is any doubt, it is understandable that the defendant will adopt a cautious approach about the use that he makes of the documents in question, until the issue can be resolved. 13 Because I think that any other course may involve irretrievable prejudice to the plaintiff, and because I think any prejudice to the defendant can be cured by expediting the hearing of the present proceedings in the anticipation that they will be heard and determined before the defamation proceedings, I decline to accede to the application to vary, or to relieve the defendant from, the undertaking he has given in the Equity proceedings. 14 I order that the hearing of these proceedings be expedited. I provisionally fix the matter for hearing before me on 28 and 29 August 2006. I make directions in accordance with the document entitled short minutes of order initialled by me, dated this day and placed with the papers. 15 In the event that any difficulty arises with my hearing the matter, I reserve leave to the parties to apply by arrangement with my associate within 14 days from today. 16 I make directions in accordance with the Expedition List Directions initialled by me, dated this day and placed with the papers.