Administrative Decisions Tribunal New South Wales Medium Neutral Citation: QQ v Commissioner of Police, NSW Police Force [2011] NSWADT 54 Hearing dates: 8 September 2010, 29 September 2010 Decision date: 16 March 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The matters are to be listed for further directions on Tuesday 19 April 2011 at 9.30 am Catchwords: Summons to produce documents - legitimate forensic purpose Legislation Cited: Administrative Decisions Tribunal Act 1997 Police Act 1990 Privacy and Personal Information Protection Act 1998 Cases Cited: Alister v The Queen (1984) 154 CLR 404 Attorney General for NSW v Chidgey [2008] NSWCCA 65 Commissioner of Police v Tuxford [2002] NSWCA 139 Mann v Carnell (1999) 201 CLR 1 New South Wales Bar Association v Archer [2004] NSWADT 38 Principal Registrar of the Supreme Court v Tastan (1994) 75 A Crim R at 504 R v Saleem (1989) 15 NSWLR 14 R v Saleem (No. 2) [1999] NSWCCA 86 Rae v Commissioner of Police, New South Wales Police Force [2009] NSWADT 183 Trade Practices Commission v Arnotts Ltd (No. 2) (1989) 88 ALR 90 Wilson v New South Wales [2008] NSWDC 130. Category: Interlocutory applications Parties: QQ (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel : P Knowles, (Applicant) P Ginters, (Respondent) Solicitors: Mitchell Lawyers (Applicant) Henry David York (Respondent) File Number(s): 093184 and 093252 reasons for decision 1In these reasons the names of private individuals have been anonymised so as to preserve the privacy of their personal affairs. The Applicant is referred to as QQ. 2The Applicant is a police officer who is currently suspended. He has commenced two proceedings against the Respondent in the Tribunal. Both proceedings arise from claims under the Privacy and Personal Information Protection Act 1998 (the 'PPIP Act'). 3Proceedings 093184 (the 'Newspaper Claim') relate to an allegation that information concerning the Applicant's suspension status and remuneration were disclosed to a third party and subsequently published by that third party on a newspaper internet site. 4Proceedings 093252 (the 'DIAC Claim') arise from requests for information made by an officer of the Respondent to the Department of Immigration and Citizenship. In response to the requests, DIAC disclosed a 'Record of Movement' and an "Outgoing Passenger Card' relating to the Applicant. Those documents contained information relating to Applicant's name, sex, date of birth, nationality and travel details. The Application in the DIAC Claim alleges breaches of the PPIP Act arising from the Respondent's collection and use of the information obtained from DIAC. 5On the application of the Applicant, the Tribunal issued summonses in each of the matters requiring the Respondent to produce documents. The Respondent has made various objections to each summons. The Respondent's objections are the subject of these determinations. 6Much of the material sought has been produced, however the Respondent objects to the production some or parts of some of the documents ("the resisted documents") on the basis of an apparent lack of legitimate forensic purpose, and/or that they are properly subject to a claim of client legal privilege. The Respondent also asserts that some parts of the resisted documents are also the subject of claims of public interest immunity. The Commissioner seeks to be excused from production of the resisted documents. 7I have agree to deal with the issue in two stages. I will firstly consider the legitimate forensic purpose issue. If the Respondent is unsuccessful on that basis, the matter will be relisted to allow the parties to make further submissions in regard to the remaining issues. The legitimate forensic purpose test 8The parties disagree in regard to the basis on which the question of legitimate forensic purpose is to be determined. 9Where a summons is challenged on the ground that it lacks a legitimate forensic purpose, the onus falls on the issuing party to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought: Principal Registrar of the Supreme Court v Tastan (1994) 75 A Crim R at 504; R v Saleem (1989) 15 NSWLR 14 at 18C; Commissioner of Police v Tuxford [2002] NSWCA 139 at [22] per Brownie JA (with whom Spigelman CJ and Ipp AJA agreed). 10A legitimate forensic purpose will only be established where the evidence sought to be produced is relevant. The Applicant submits that the test for relevance in this context is not demanding. He says that relevance need only be apparent and will be established where a document is 'capable of throwing light on an issue'. In support of that submission he relies on the decision in Trade Practices Commission v Arnotts Ltd (No. 2) (1989) 88 ALR 90 at 103 adopted in New South Wales Bar Association v Archer [2004] NSWADT 38 at [43] (" Archer "). 11The Applicant further submits that relevance will also be established where a document indicates a useful line of investigation or contains information which may affect the manner in which a party conducts proceedings: Mann v Carnell (1999) 201 CLR 1 at 10-11. 12The Applicant further submits that a request for production may have a legitimate forensic purpose even if it is inadmissible by reason of section 170 of the Police Act 1990: Rae v Commissioner of Police, New South Wales Police Force [2009] NSWADT 183 at [52]. For example, the Internal Review File may be useful in the cross-examination of the Respondent's witnesses or reveal important facts not in possession of the Applicant: Wilson v New South Wales [2008] NSWDC 130. 13In contrast, the Respondent contends that the party seeking production must show that there are concrete grounds to believe that particular documents will assist their case and is not entitled to have access to such documents simply to see whether they may do so: Alister v The Queen (1984) 154 CLR 404 at 414. 14Mr Ginters argues that it is important that the "concrete grounds" test is applied with rigour, so as to ensure that the gateway to accessing documents is not impermissibly widened. He says that the Tribunal must have some concrete grounds which takes the case beyond a mere fishing expedition. It is not sufficient for a party seeking production pursuant to a summons to merely establish that the documents sought are, or may be, relevant: R v Saleem (No. 2) [1999] NSWCCA 86 at [11] per Simpson J (with whom Spigelman CJ and Studdert J agreed); Attorney General for NSW v Chidgey [2008] NSWCCA 65 at [58] - [69], [90], [91]; esp. [59]- [60] (" Chidgey "). 15As was noted above, the issue was considered in Archer at [43] 43 On the issue of relevance, we accept Mr McCulloch's submission that the test to be applied is as stated by Beaumont J in Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 103. It is sufficient that the summons or subpoena should have a 'legitimate forensic purpose' to the extent that the material sought has an 'apparent relevance' to the issues in the principal proceedings. 44 If this test is applied, the approach adopted by Cripps AJ in Wardell v New South Wales Bar Association [2002] NSWSC 548 is sufficient to illustrate that the material sought in these summonses has an 'apparent relevance' to the questions whether the Respondent, during the years in question, made 'adequate' payments of income tax, or 'adequate' provision for such payments. 45 In our judgment, even if the more guarded test set out in Arnhill Pty Ltd v General Terminal Co Pty Ltd (1991) 23 NSWLR 545 at 555-556 is applied - namely that production of the documents specified must be 'necessary' for 'disposing fairly' of the case - the same result follows. 16The Respondent argues that the Applicant must show some concrete ground for belief that the documents will assist his case and relies on the views of Gibbs CJ in Alister v The Queen where he stated at 414: ... where the Crown objects to the production of a class of documents on the ground of public interest immunity, the judge should not look at the documents unless he is persuaded that inspection would be likely to satisfy him that he ought to order production; in the words of Lord Wilberforce in Air Canada v Secretary of State for Trade ([1982]2 AC 394 at 439) he must have "some concrete ground for belief which takes the case beyond a mere fishing expedition". 17The Respondent particularly relies on views expressed by Beazley JA (with whom James J and Kirby J agreed) in the New South Wales Court of Criminal Appeal in Chidgey . Chidgey was not considered in Archer. 18In Chidgey Beazley JA stated at paragraphs [58] - [69]: Principles governing legitimate forensic purpose 58 The principles that govern the application of a party to produce documents pursuant to a subpoena are well settled. In this regard, the basic principle was stated by Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575: "... a party is no more entitled to use a subpoena ... than he is a summons for interrogatories, for the purposes of 'fishing', i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all ..." (Emphasis added) (Citations omitted) Mere relevance not sufficient 59 It is not sufficient for a party seeking production of documents to merely establish that such documents are or may be relevant. This is apparent from the comments of Mahoney AP in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162. In that case, Mahoney AP was concerned with the question whether access should be given to certain documents that had been subpoenaed in criminal proceedings. His Honour said, at 181: "... the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a 'fishing expedition', to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding." (Emphasis added) 60 His Honour stated, at 182, that whilst a party must show, or it must appear, that the subpoenaed documents are relevant to an issue in the proceedings, "mere relevance is not enough". His Honour continued: "In the case in which the party did not know what was the nature or the contents of the documents, the position would be plain. He could not claim to look at the documents merely to see whether they contained something which might be relevant or help his case. But in this case it is accepted that the documents are affidavits directed to showing 'that there are reasonable grounds for' the 'suspicion or belief' referred to in s 16(1). Accordingly, prima facie the documents are relevant to the issue to be decided, viz, whether there was in fact no material that could reasonably justify the relevant belief. But, in my opinion, it is not sufficient for a party subpoenaing the document to say 'the document is relevant because, if it does anything, it establishes the case against me'. He must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient." 61 Senior counsel for the respondent submitted that the judgment of Mahoney AP did not represent a majority statement on this issue, nor had it been endorsed or applied in later decisions. 62 Neither Kirby ACJ (as his Honour then was) (who dissented on the facts) nor Hunt AJA (who agreed with Mahoney AP in the result) made any reference to "mere relevance". However, each applied a test of "forensic purpose" and the need for it to be "on the cards" that the documents would "materially assist the accused". Accordingly, the second element of the 'test', that is, that it must be "on the cards" that documents would materially assist the case, subsumes in it the notion that "mere relevance" is insufficient. Documents may be relevant even if they do not assist a party's case. To that extent therefore, there is no difference in principle in the test applied by each of the members of the Court. 63 But in any event (and contrary to the respondent's submissions) the statement of Mahoney AP has been applied in subsequent decisions in New South Wales and Victoria: see Propend Finance Pty Ltd v Commissioner of the Australian Federal Police (1994) 72 A Crim R 278 at 282-283; Bruce Harvey v State of New South Wales (Supreme Court of New South Wales, per Johnson J at 3-4, 15 June 2005, unreported); R v Robinson (1996) 89 A Crim R 42 at 61; Gardiner v Regina [2006] NSWCCA 190; (2006) 162 A Crim R 233 at [88]; and Re Don [2006] NSWSC 1125 at [6]. The correct test 64 The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms: "The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was." (I will refer to this case as R v Saleam [1999].) 65 The genesis of the expression "on the cards" is to be found in the judgment of Gibbs CJ in Alister v R [1983] HCA 45; (1984) 154 CLR 404 at 414. In Alister , the High Court was concerned with a subpoena issued to the Australian Security Intelligence Organisation (ASIO) in the course of a criminal trial for conspiracy to murder and attempt to murder. The police (acting upon information provided by an informant) had been able to foil the conspiracy, which involved an intention to murder by exploding a bomb near the intended victim's home. The case was notorious - the accused members of Ananda Marga had been suspected of placing a bomb outside the Hilton Hotel in Sydney, in an attempt to kill the Prime Minister of India. The subpoena had required ASIO to produce all files and documents relating to the informant in respect of ASIO's investigation of Ananda Marga. The Attorney General for the Commonwealth objected to the production on security-based public interest grounds. 66 Gibbs CJ, at 414, noted that the applicants who had sought the production of the documents were not able to state whether or not the documents existed, or if they did, whether they were likely to assist the applicant's case. His Honour observed, however, that it was not unreasonable to believe that documents were in existence and that "one would guess that any reports ... would be adverse to the applicants". His Honour referred to the conflicting position in England as to the circumstances in which a court would inspect documents in a case where public interest immunity was claimed. It is necessary to set out that passage in full, in order to understand the context in which his Honour introduced the terms "on the cards". He said: "Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial, so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence." (Emphasis added) (Citations omitted) 67 It is both important and instructive to understand the manner in which Gibbs CJ saw this test operating at a practical level. He said, as a continuation of the passage just quoted: "If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done." 68 The approach of Gibbs CJ in Alister has been consistently adopted and applied in this State. An early, useful example is Principal Registrar of the Supreme Court v Tastan . Barr AJ (as his Honour then was) said, at 499, that there will be no legitimate forensic purpose if, "all the party is doing is trying to get hold of the documents to see whether they may assist him in his case": see The Commissioner for Railways v Small . His Honour noted that there was nothing in the case before him that made it appear to be "on the cards" that anything contained in the subpoenaed documents was likely to materially assist the accused in his defence. His Honour considered, at 506, that the defendant wanted access to the documents "to see whether he had a [defence]". 69 Hunt J (Carruthers and Grove JJ agreeing) applied the "on the cards" test in an earlier Saleam case: R v Saleam (1989) 16 NSWLR 14, and permitted access to documents in circumstances that were redolent of the example given by Gibbs J in Alister . The subpoena in this case had been issued during the appeal process. It was argued that there was material in the subpoenaed material that would indicate that there had been a miscarriage of justice at trial. The accused had been told by a police officer seconded to the Ombudsman's office that "that there were discrepancies in the police case" at the trial. It was not disputed that such a statement had been made. The accused claimed that the subpoenaed material would be relevant to impugn the credit of the principal Crown witness at trial. The Court allowed access to the documents on the basis that it was "at least 'on the cards' that the documents in question would assist the appellant in his appeal and that there was therefore a legitimate forensic purpose for the production of the documents". 19I agree with the Respondent in regard to the applicable test. The Applicant is not entitled to conduct a fishing expedition. The Applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case. " The connection must be one which is real and substantial, not tenuous. In my view, the Applicant must show some concrete ground for belief that the documents will assist his case. 20It is therefore necessary to consider the Applicant's arguments in that regard. Summonses in Newspaper Claim filed 17 December 2009 and 28 May 2010 21The Applicant contends that the Respondent's admission of breach in the Newspaper Claim does not deprive the summons of a legitimate forensic purpose. He submits that a relevant issue in the Newspaper Claim will be whether the breach caused the psychological injury suffered by the Applicant and that causation will depend, in part, on the facts and circumstances surrounding the breach. He says that he is therefore entitled to require the production of evidence relating to the circumstances of the breach because these circumstances will be relevant to the question of causation. For this reason the Internal Review File is relevant to the Newspaper Claim. 22It is common ground that the breach in respect of the Newspaper Claim was committed by an employee of the Respondent, Ms W. The Applicant contends that there is an issue as to whether Ms W acted deliberately or with malicious intent. He says that this is a possibility open on the evidence and not a matter of mere speculation. If Ms W's disclosure was deliberate or malicious it may affect the assessment of the appropriate remedy in this case. 23The Applicant submits that any statement by Ms W is capable of 'throwing light on' the issues in the matter. 24The Applicant has been provided with a redacted version of the Investigation File compiled in relation to the Applicant's complaint. The Applicant does not accept that the masked sections of the Investigation File are not relevant to the issues in dispute. He referred to statements made in the report and submitted that either the redactions give a misleading impression of the findings or the findings were in fact inconsistent. He says that either way, the unmasked version of the Investigation File will be relevant to the issue of whether Ms W acted deliberately or maliciously. Further, he says that a finding that Ms W had not behaved honestly in respect of one of the masked allegations suggests that the redacted information is capable of rationally affecting the credibility of Ms W's evidence. Accordingly, the masked sections are relevant to determining whether the disclosure was malicious or deliberate. Further, he says that it is possible that the redacted material relates to other conduct of Ms W directed towards the Applicant. If this is the case, the redacted material would be directly relevant to establishing that the disclosure was malicious or deliberate. 25The Applicant further submits that there is a live issue as to how Ms W became aware of the information which she subsequently disclosed. He says that the redacted material is of direct relevant to this issue because it appears from the Investigation File that there was an allegation against Ms W that she used police databases in an unauthorised manner. Summons in the DIAC Claim filed 24 December 2009 26The Applicant pressed for the Internal Review File related to the complaint. He submits that the Respondent's objection is without merit for the same reasons considered in respect of Internal Review File in the Newspaper Claim. 27The Applicant also pressed for the Police complaint File P0803603. He points to the conclusion in the internal review of the DIAC Claim that the Respondent was conducting an investigation into the alleged fraudulent conduct of the Applicant; that the requests to DIAC were made in the course of the investigation; and that, by application of section 27(1) of the PPIP Act, the PPIP Act had no application. However, the Respondent now asserts that the requests to DIAC were unrelated to the investigation of the alleged fraud but that the requests were made in connection with concerns for the Applicant's welfare and ongoing suspension review procedures. 28It is claimed that the requests for information from DIAC arises out of a complaint made under Part 8A of the Police Act and that accordingly is not personal information within the meaning of section 4(3)(h) of the PPIP Act. The Applicant submits that he is not bound to accept the Respondent's assertions that the requests to DIAC were made for a particular purpose and that he is entitled to test the reasons behind the DIAC request. He submits that the Respondent's change of position gives rise to a suggestion that the internal review was either based on inaccurate information, or performed with insufficient diligence or was not a bona fide attempt to deal with the Applicant's complaint. He says that these questions may be relevant to the remedy that the Tribunal deems to be appropriate. The file relating to the fraud allegation is relevant because it was a matter which the Respondent itself relied upon when conducting the review. 29The Applicant also pressed for the Police complaint File P0802631. He says that the file, relating to an off-duty conduct allegation, is relevant for essentially the same reason considered in respect of the file relating to the fraud allegation. The requests made to DIAC expressly refer to the off-duty conduct allegation. The Applicant submits that it may 'throw light upon' the reasons the DIAC requests were made and that this in turn is relevant to the Respondent's assertion that the PPIP Act does not apply to the DIAC Claim. 30The Applicant also pressed for the file relating to the Applicant's suspension reviews ("the suspension file"). For the reasons outlined above in respect of the fraud allegation, the Applicant submits that he is entitled to test whether the DIAC request arises from and relates to the suspension reviews. He says that in this way, the suspension file may 'throw light upon' the issues relevant to the Respondent's claim that the exception in section 4(3)(h) of the PPIP Act applies to this case. He also says that there is a question as to whether a 'welfare check' was in fact undertaken pursuant to the suspension review or for some other reason. The Respondent has confirmed that the suspension file contains documents relating to the suspension review. As such it is likely to contain material probative of the nature and scope of the 'welfare check'. 31The Applicant also pressed for the Memorandum of Understanding (MOU) between the Respondent and the DIAC regarding the exchange of information between the parties and the Respondent's iASK user manuals. IASK is the software programme used by the NSW Police Force when requesting and receiving information from external agencies. The Applicant submits that the MOU and the iAsk manuals may shed light upon the question of whether the Respondent's procedures impliedly authorised non-compliance with the PPIP Act. 32The Respondent disputes the Applicant's assertions in regard to the purposes for which the material might be relevant. 33In regard to the Newspaper Claim the Respondent submits that in light of the fact that it admits it has breached the PPIP Act. Having regard to the respondent's admissions, the only issue that remains before the Tribunal is what relief, if any, ought to be awarded arising from the admitted breach. To this extent, the respondent's primary submission is that the summonses in the Newspaper Claim are otiose. 34The Respondent submits that enabling the Applicant to trawl through the records in the hope that they may shed some light on the question of damage purportedly sustained, does not amount to a legitimate forensic exercise. A party is not entitled to have access to documents simply to see whether they may assist their case. It submits that the appropriate course for the Tribunal to adopt is to set aside those paragraphs of the summonses to which the Respondent has objected. 35In regard to the DIAC Claim the Respondent submits that the information sought was information "arising out of a complaint under Part 8A of the Police Act and that such information is not personal information. 36It says that the call for the complaint file relating to criminal fraud allegations against the Applicant serves no legitimate forensic purpose. The Applicant's call amounts to an impermissible attempt to see if documents contained in the complaint file may assist him or open up a new line of inquiry. 37The Respondent concedes that the Applicant is entitled to test the reasons behind the DIAC request. The Applicant will have the right to seek to cross examine witnesses called by the Respondent in this regard. 38Similarly, the Respondent submits that no legitimate forensic purpose can or has been established in relation to the call for complaint files and that in due course the Applicant will be made aware of material that is relevant to any disciplinary action that may be commenced. 39The Respondent also raises a public interest immunity claim in relation to complaint files, in relation to the MOU and in relation to the iASK document. 40The Respondent submits that the Tribunal would not be satisfied that there has been established a concrete ground that the documents sought will materially assist the Applicants case, so as to take it beyond a mere fishing expedition. Discussion 41As I have indicate above, it is for the Applicant identify a legitimate forensic purpose for which access is sought; he must show some concrete ground for belief that the documents will assist his case. 42The Macquarie Dictionary online defines "concrete" as: adjective 1. constituting an actual thing or instance; real: a concrete example. 2. relating to or concerned with realities or actual instances rather than abstractions; particular as opposed to general: concrete ideas. 3. representing or applied to an actual substance or thing as opposed to an abstract quality: a concrete noun. 43I have considered the arguments presented by each of the parties. I note that the Applicant has argued that it is sufficient that the material may 'throw light upon' the relevant issues and has presented argument to that effect. Nevertheless, it is my view that the Applicant has satisfied what I consider to be the applicable test. I am satisfied that there are concrete grounds for the Applicant's belief that the documents will assist his case. Public Interest Immunity 44As I have indicated above, the Respondent has raised a public interest immunity claim in relation to many of the resisted documents. I have agreed to the Respondent's request that the parties be heard on that issue. Accordingly, the matter is to be relisted to allow the parties to make further submissions. 45In the meantime, I encourage the parties to make all reasonable efforts to reach agreement on the outstanding issues in regard to the summonses so that the matters can proceed to hearing. Order The matters are to be listed for further directions on Tuesday 19 April 2011 at 9.30 am I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar ********** 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. Decision last updated: 16 March 2011