New South Wales Supreme Court CITATION : Priest v State of New South Wales [2007] NSWSC 41 HEARING DATE(S) : 2 February 2007 JUDGMENT DATE : 2 February 2007 JUDGMENT OF : Johnson J at 1 EX TEMPORE JUDGMENT DATE : 2 February 2007 DECISION : See paragraphs 42 to 45 inclusive of judgment. CATCHWORDS : PRACTICE AND PROCEDURE - discovery - application by Defendant for withdrawal of category of documents from order for discovery - failure by Defendant to comply with Court order - Defendant in breach of duty to assist Court to facilitate just, quick and cheap resolution of real issues in dispute on application - obligations of Defendant as model litigant - order for costs on indemnity basis LEGISLATION CITED : Civil Procedure Act 2005 Priest v State of New South Wales [2006] NSWSC 1281 Priest v State of New South Wales [2006] NSWSC 12 CASES CITED : Nelson v John Lysaght (Australia) Limited (1974-1975) 132 CLR 201 Scott v Handley (1999) 58 ALD 373 Wodrow v Commonwealth of Australia (2003) 129 FCR 182 Badraie v Commonwealth of Australia (2005) 195 FLR 119; [2005] NSWSC 1195 PARTIES : Michael Patrick Timothy Priest (Plaintiff) State of New South Wales (Defendant) FILE NUMBER(S) : SC 20927/01 COUNSEL : Mr P Semmler QC; Ms K Nomchong (Plaintiff) Mr J Maconachie QC; Mr P Sternberg (Defendant) SOLICITORS : Marsdens Law Group (Plaintiff) IV Knight, Crown Solicitor's Office (Defendant) LOWER COURT DATE OF DECISION : --- LOWER COURT MEDIUM NEUTRAL CITATION : --- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Johnson J 2 February 2007 20927/01 Michael Patrick Timothy Priest v State of New South Wales JUDGMENT (on outstanding discovery issue and costs) 1 JOHNSON J: On 28 November 2006, I delivered judgment (see Priest v State of New South Wales [2006] NSWSC 1281) with respect to a number of applications then on foot of an interlocutory nature as between the parties. That judgment must itself be viewed against the background of an earlier judgment delivered by me in January 2006 concerning (in some respects) related interlocutory issues (see Priest v State of New South Wales [2006] NSWSC 12). The Tunks Report and the Diaries Issue 2 Of the matters determined in my judgment of 28 November 2006, two for the moment may be placed to one side. There was an unsuccessful claim for client legal privilege by the Defendant with respect to a report referred to in that judgment as the Tunks report. The only issue to be determined with respect to that matter is the question of costs. I will return to that issue later in this judgment. 3 With respect to the second issue, namely compliance by the Defendant with respect to Category 30 of the order for discovery (the diaries issue), there had been an unsatisfactory response by the Defendant to that order, part of which is referred to, in short form, in paragraphs 78 to 81 of my judgment of 28 November 2006. There was, in my view, a legitimate grievance held by the Plaintiff with respect to the response of the Defendant to compliance with that category of discovery. 4 It took further orders of the Court, and an affidavit sworn this week, to bring that issue to a head in a manner which, in my view, was entirely capable of earlier resolution if the Defendant had taken appropriate steps. Nevertheless, the outstanding question with respect to that issue, like the Tunks report, is that of costs. I will return to that issue later in this judgment. The Operation Retz Documents 5 The primary question which was left open in my judgment of 28 November 2006 was the issue of discovery with respect to a class of documents referred to as the Operation Retz documents. In my judgment of 31 January 2006, I ordered the Defendant to give discovery of a category of documents (then numbered Category 31, now numbered Category 27), described in the following terms: "Operation Retz reports into the conduct of former Assistant Commissioner Lola Scott from 1999 to present." 6 After that order for discovery had been made, application was made by the Defendant, in circumstances revealed in greater detail in my judgment of 28 November 2006, to set aside the order for discovery for that category. At paragraph 52 and following of my judgment of 28 November 2006, I adverted to the arguments made by the parties. Given that it was the Defendant that was seeking to have set aside an order of the Court already made, I approached the application upon the basis that it was for the Defendant to demonstrate that the relief sought in its Notice of Motion ought be granted. 7 I was provided by the Defendant on 2 November 2006 (the day of the hearing of the motion), with two folders of documents which became MFI5. I was informed that those documents constituted all documents falling within Category 27. I reserved judgment on 2 November 2006 upon the basis that amongst the issues I had to consider and determine, was the Defendant's application to be excused from discovery of Category 27 upon the ground that the documents falling within MFI5 were not relevant, applying the relevance test for discovery laid down in the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules. 8 Upon examining the documents in MFI5, two things became apparent. Firstly, there was a lengthy report (some 153 pages long) of Detective Inspector Cameron dated 15 November 2002. In addition, there was a substantial number of other documents (measured in the hundreds of pages) in the balance of volume 1 of MFI5 and in volume 2 of MFI5. Those documents were not indexed or paginated. They were furnished, however, by the Defendant upon the basis that they fell within Category 27. At least that was the understanding I had at that time (T24, T48-49, T52, T56.48, 2 November 2006). Given the history of the matter, I am entitled to infer that was the Defendant's clear understanding of the position. 9 For reasons explained in my judgment of 28 November 2006 (at paragraph 72 and following), an examination of the documents had raised a number of unresolved questions in my mind. I adverted (in paragraph 73 of my judgment) to a number of specific parts of the report of Detective Inspector Cameron of 15 November 2002 which, on their face, related directly or indirectly to allegations of victimisation or harassment of police officers or fear of retribution of officers resulting from the making of complaints. I held that, applying the principles in Nelson v John Lysaght (Australia) Limited (1974-1975) 132 CLR 201 at 214-215, there appeared to be a basis on which some of the documents contained in those two folders ought be discovered. 10 I gave the Defendant (in paragraph 77) an opportunity, expressly said to be not open-ended, to provide assistance to the Court and to identify with specificity the documents contained within MFI5 which it contended did not relate to the investigation of allegations of victimisation and harassment. 11 It may be that I did not express myself clearly enough because, when the matter came before me again on 14 December 2006 and I enquired of Senior Counsel for the Defendant concerning the pages of the Cameron report to which I referred in paragraph 73 and in particular, the dates of the events which were the subject of those pages, I was informed that the Defendant was not in a position to answer that question (T2-3, 14 December 2006). It may be that I had been somewhat oblique in my judgment in not making clear that what was required by the Court was assistance from the Defendant to identify dates of events so that I could then rule upon submissions as to relevance which fell for consideration as part of the application. 12 It became apparent on 14 December 2006 that the questions I asked of Senior Counsel for the Defendant on that occasion could not be answered, and that more time would be needed to consider those issues. 13 A further question was raised by Ms Nomchong, counsel for the Plaintiff, with respect to what was said to be a larger number of documents produced to the Legislative Council of this State in response to an order of that body and which were said to be Operation Retz documents. I gave a number of directions on 14 December 2006 which were aimed to achieve some progress with respect to this issue. 14 I bear in mind, of course, that it is the Defendant that bears the onus on the present application which has been on foot now for more than six months. Directions Made on 14 December 2006 15 Direction 1 made on 14 December 2006 required provision by the Defendant to my Associate by 4.00 pm on 30 January 2007 of a document explaining the dates of the various allegations of victimisation and harassment investigated by Detective Inspector Cameron in her report dated 15 November 2002 and, if there were documents supporting those particular allegations contained within MFI5, that the Defendant provide a cross-reference to those documents in MFI5. The position, put shortly, is that no such document has been produced. A number of other documents have been produced today in an attempt to explain what was a relatively simple enquiry raised expressly by me with Senior Counsel and recorded in the transcript of 14 December 2006. I remain puzzled as to why the first direction has not been complied with. 16 Direction 2 arose from the suggestion that there were other documents falling within Category 27 which were not presently contained in MFI5. If there were such documents, the second direction required that they be provided to my Associate by 4.00 pm on 30 January 2007, accompanied by an index and any written submission which the Defendant wished to make with respect to those documents, such submission to be treated by me, clearly enough, as a confidential submission. 17 If there were to be documents produced in answer to the second direction, Direction 3 required the Defendant to inform the solicitors for the Plaintiff that there were, in fact, such documents. 18 I do not need to refer to Direction 4 at this stage as it relates to the diaries issue. Events Since 14 December 2006 19 On 30 January 2007, two lever-arched folders, being the folders MFI5, were provided to my Associate. They had been paginated and tabbed in various ways. There was no covering letter explaining whether there were to be any documents produced in answer to the second direction. In those circumstances, and having regard to the attempts which I have made to manage these proceedings now over a period of months, I sought clarification through my Associate on 31 January 2007 as to whether there were to be documents produced in response to the second direction. 20 On 1 February 2007, an email was received from the solicitor for the Defendant which said: "I confirm that additional documents relating not only to the Retz reports, but to Operation Retz generally will be produced in accordance with the second direction his Honour made on 14 December 2006. Due to the large number of documents contained in approximately 40 boxes, the photocopying of those documents will not be completed until 4 pm today. I request that his Honour extend time to 5 pm today. Counsel has not had the opportunity to review the documents and prepare written submissions. However, an index provided by my client will be attached to the documents." A somewhat cryptic two-page document was produced as an index, clearly being an internal document created within the New South Wales Police. 21 Some 37 boxes, containing in excess of 100 lever-arched folders, were provided to my Chambers yesterday following the communication from the Defendant's solicitor. I took it to be the position, consistent with the email from the Defendant's solicitor, that this was, albeit belatedly, production of documents which the Defendant acknowledged were caught by Category 27. There was no written submission provided in accordance with my direction because, as the Defendant's solicitor made clear, counsel had not looked at the documents contained in the 37 boxes. 22 The matter was called on today and I immediately raised a question concerning compliance with the orders of 14 December 2006. I was informed by Senior Counsel for the Defendant that the 37 boxes had really been produced because they related to a subpoena which the Plaintiff had issued, and which the Defendant proposed to make application to set aside. I had no prior knowledge of that subpoena and indeed the email from the Defendant's solicitor to which I have referred made no mention of it. 23 It was then submitted for the Defendant that the 37 boxes had been provided essentially for more abundant caution in the event that a point was reached where they may need to be considered, but that in reality they lay outside Category 27, and to the extent that they may respond to a subpoena from the Plaintiff, the Defendant proposed to make application to set aside that subpoena. Senior Counsel for the Plaintiff indicated that he did not propose to call upon the subpoena. Proper Construction of Category 27 24 It seems to me that the appropriate starting point, in an attempt to break the forensic gridlock that now embraces this litigation, is to make a number of rulings and findings. 25 Category 27 is in the terms referred to earlier in this judgment. The Defendant seeks to construe that category as being a reference to a single report, that of Detective Inspector Cameron of 15 November 2002, with no other documents falling within the category. That submission is put on the basis that there is only one Operation Retz report and, in the Defendant's submission, that is a complete response to Category 27. 26 Mr Semmler QC, for the Plaintiff, submits that that is not an appropriate construction of the paragraph and indeed, the Defendant has not acted in a manner consistent with that construction in the past with respect to this litigation. 27 I approach this matter as one of construction of the meaning of the words in Category 27. It is not a category that is confined to "a report", being the final report of Detective Inspector Cameron of November 2002. It is apparent on a reading of that report that it is not a freestanding and self-contained document. That is apparent because I have attempted now, on more than one occasion, to obtain assistance from the Defendant in understanding the incidents referred to in that report and the dates of those incidents and complaints. 28 The affidavit of Lindsay Matthew McGillicuddy of 31 January 2007, relied upon today by the Defendant, does not provide great assistance to the Defendant. It is apparent that the deponent has had a limited opportunity to look at the documents. He satisfied himself that there is at least something in each of the boxes that relates to Operation Retz. He says, in paragraph 12, that he is unable to say whether those documents are the totality of the Operation Retz documents. Interestingly, in a handwritten annexure to the affidavit, Detective Sergeant McGillicuddy, from time to time, refers to a series of documents as "annexures to original report" contained in various volumes and boxes. 29 I do not have to determine conclusively whether it is clear beyond doubt that the annexures to the Operation Retz report are incorporated in the report by reference. It seems clear enough, however, that the Operation Retz report of Detective Inspector Cameron is not a document which, stands alone and speaks for itself. This is relevant to the proper construction of Category 27. I reject the Defendant's submission that Category 27 ought be read as a reference solely to the report of Detective Inspector Cameron of 15 November 2002. 30 In the light of that conclusion, where does one go from there? I have two lever-arched folders, MFI5. I have a failure by the Defendant to comply with my first direction of 14 December 2006. I have 37 boxes delivered to my Chambers, in relation to which the evidence of Mr McGillicuddy adduced today is that there is at least something in each box which relates to Operation Retz. Counsel for the Defendant have not considered the documents in the 37 boxes. There is no affidavit at this stage from anyone to say what is or is not in them. The starting point then is, as I have said, a ruling that the Defendant's construction of Category 27 is not accepted. 31 That then leaves: (a) the contents of MFI5 beyond Detective Inspector Cameron's report of 15 November 2002 - these documents appear to be a number of annexures or supporting documents, and (b) the balance of the documents contained in the 37 boxes - these appear to be annexures or supporting documents with respect to the report which, for some reason, were not included in MFI5. 32 I am not presently prepared to make an order excusing the Defendant from Category 27 the order for discovery made on 31 January 2006. The Defendant's Approach to the Application Concerning Category 27 33 The Civil Procedure Act 2005 contains a number of provisions which are relevant to the present application. Section 56 of that Act says that the overriding purpose of the Act, and the rules in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s.56(1). The Court must seek to give effect to that overriding purpose when it exercises any power given to it under the Act or by the rules: s.56(2). A party to civil proceedings is under a duty to assist the Court to further that overriding purpose and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court: s.56(3). A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in s.56(3): s.56(4). A Court may take into account any failure to comply with s.56(3) or s.56(4) in exercising a discretion with respect to costs: s.56(5). 34 In a sense, s.56 has the result that every litigant in civil proceedings in this Court is now a model litigant. However, there is ample authority that governmental bodies, including the Commonwealth of Australia or the State of New South Wales, ought be regarded as having model litigant obligations extending in the past, at least, beyond those of private litigants. In this respect, see decisions such as Scott v Handley (1999) 58 ALD 373; Wodrow v Commonwealth of Australia (2003) 129 FCR 182; Badraie v Commonwealth of Australia (2005) 195 FLR 119 at 135; [2005] NSWSC 1195 at paragraph 94. 35 I am not satisfied, given the history that I have recited in this judgment, that the Defendant has discharged its obligations under s.56 Civil Procedure Act 2005 or, indeed, under its model litigant obligations with respect to the Category 27 issue. 36 As I have observed, the Defendant bears the onus of proof on the application to exclude Category 27 from the order for discovery. I have given consideration to adopting an approach that, in effect, enough is enough. If the Defendant has not, despite the numerous opportunities it has had to date, demonstrated that the relief it seeks should be granted, then the line should be drawn at this time. I am satisfied, however, that the interests of justice do not call for that approach. 37 It seems to me there are real and significant issues remaining with respect to the discoverability of these documents. The problem is that I am in no better position to resolve the application now than I was on 28 November 2006. Indeed, I am in a worse position because 37 further boxes of documents, which have not been examined by counsel for the Defendant and which are not the subject of any evidence on the part of the Defendant beyond the fairly superficial affidavit of Mr McGillicuddy, now lie in my control. 38 The course which I propose to take with respect to the outstanding question of discovery is to direct, in the first instance, that the Defendant comply with the first direction given on 14 December 2006 and I have in mind that this step ought be satisfied by 5 pm next Wednesday. If there is any default in orders I make today, then a question may arise as to whether the Court ultimately takes the view that the Defendant has had ample opportunity to demonstrate a basis for the relief it seeks and has failed to do so. I will expect that directions I give will be strictly complied with. 39 I will seek further submissions from the parties concerning the contents of the 37 boxes. I am not prepared, on what I have heard to date, to rule that they fall outside Category 27. Whether there are any documents within them that are discoverable or not discoverable within Category 27 is a question which the Defendant is simply not in a position to answer at this stage. 40 I have heard general submissions by reference to Nelson v John Lysaght and other broad areas of principle, including foreseeability (T53, 2 November 2006; T9-11, 14 December 2006). The problem is that the Defendant is not sufficiently familiar with the documents the subject of this application to assist the Court at present in the determination that I must make. I will give the Defendant an opportunity, and a last opportunity, to provide proper assistance to the Court in that regard. I will, however, be taking an approach with respect to costs on this question which, I hope, will ensure that the Defendant understands that the orders of the Court are made to be complied with. Costs 41 I made clear in my judgment of 28 November 2006 (at paragraph 56) that whatever the outcome of the Defendant's application to withdraw Category 27 from the order for discovery, it may have to bear the costs, bearing in mind the way in which the issue has arisen. I am satisfied, on the present state of this application, that an order should be made against the Defendant with respect to costs. I have in mind, in that regard, the provisions to which I have referred in s.56 Civil Procedure Act 2005, and what I regard to be failures on the part of the Defendant to comply with its obligations to the Court revealed in the approach to this litigation to date. 42 Section 98 Civil Procedure Act 2005 provides that costs are in the discretion of the Court. Costs may be ordered on an ordinary basis or on an indemnity basis. In my view, the approach of the Defendant to this application to date, and to compliance with orders of the Court, is such that there has not been just, quick and cheap resolution of the issues falling for determination. Indeed, there has been a continuing inability of the Court to discharge its functions because the Defendant has not complied with its obligations. I am satisfied, in the circumstances, that the history of this application to date is such that it is appropriate, in the exercise of discretion, to order that the Defendant pay the costs of the Plaintiff on an indemnity basis with respect to the Category 27 discovery issue. 43 With respect to the application concerning the Tunks report, it is not clear whether the process of costs will be sufficiently divisible to separate out the costs on that application. I am satisfied, however, that costs should follow the event on that application, and that the Defendant should pay the Plaintiff's costs of the application heard on 2 November 2006 and determined on 28 November 2006 in which I rejected the claim for legal professional privilege. I am, however, of the view that those costs ought be awarded in accordance with s.98 Civil Procedure Act 2005 on the ordinary basis and not on an indemnity basis. 44 With respect to the diaries issue, the evidence before me today suggests that there have been somewhat belated efforts to contact former members of the New South Wales Police, including senior members, for the purpose of ascertaining whether diaries were held in their possession. Prior to today, there has been reliance by the Defendant upon the broad proposition that certain categories of senior officers were not required to keep such documents. Although that may have been part of the response to Category 30, it could not on my view have been a complete answer, nor could it have been reasonably regarded as a complete answer. 45 It was necessary for the Plaintiff to bring the Defendant to Court to require steps taken by the Defendant in December 2006 to be taken, and even then only after further orders of the Court were made. I am satisfied with respect to that part of the application that the Defendant ought be ordered to pay the Plaintiff's costs. I am satisfied also, for reasons arising from s.56 Civil Procedure Act 2005, that those costs ought be calculated on an indemnity basis. 46 That then leaves the somewhat vexed question of the further progress of the Defendant's application concerning Category 27 of the discovery order. I will call upon counsel at this stage to make submissions as to the orders to be made to progress this matter and the timing of the hearing of the Defendant's application. [After further submissions, the matter was stood over to 3.30 pm on 7 February 2007 for directions. On the application of the Plaintiff, leave was granted for costs which were the subject of orders made today to be assessed forthwith.] ********** 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.