Administrative Decisions Tribunal New South Wales Medium Neutral Citation: QQ v Commissioner of Police, NSW Police Force [2011] NSWADT 275 Hearing dates: 17 October 2011 Decision date: 21 November 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The Applicant has leave to use documents produced pursuant to summons issued in these proceedings in the anticipated proceedings in the Supreme Court. Catchwords: Documents produced - Implied undertaking not to use documents for any purpose other than the proper conduct of the action - Whether tribunal should grant leave to use documents in other proceedings - special circumstances - principles to be followed Legislation Cited: Administrative Decisions Tribunal Act 1997 Privacy and Personal Information Protection Act 1998 Cases Cited: Bell Group Ltd (in liq) v Westpac Banking Corporation (1998) 166 ALR 699 Commissioner of Police v Gabriel [2004] NSWSC 31 Crest Homes PLC v Marks [1987] AC 829 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 Harman v Secretary of State for the Home Department [1983] 1 AC 280. Hearne v Street (2008) 82 ALJR 1259 Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684 Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283. Mann v Medical Defence Union Ltd [1997] FCA 45 Otter Gold Mines Ltd v McDonald (1997) 147 ALR 322 P and W v Manny and Anor [2010] ACTSC 50 Pacific Basin Exploration Pty Ltd v XLX (NL) [1985] WAR 11; (1984) 2 IPR 489, Prime Finance Pty Limited and Ors v Randall and Ors [2009] NSWSC 361 Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR; [1991] 3 All ER 878 QQ v Commissioner of Police, NSW Police Force [2011] NSWADT 54 Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 110 ALR 685 Category: Interlocutory applications Parties: QQ (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Counsel P Ginters (Respondent) Mitchell Lawyers (Applicant) Henry Davis York (Respondent) Privacy Commissioner File Number(s): 093184 Publication restriction: Section 75(2)(b) of the Administrative Decisions Tribunal Act 1997 applies in relation to the identity of the Applicant. REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): In 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 was a police officer employed by the Respondent. He has commenced several proceedings against the Respondent in the Tribunal. These proceedings arise from claims under the Privacy and Personal Information Protection Act 1998 ("the PPIP Act") and relate to an allegation that information concerning the Applicant's status and remuneration were disclosed to a third party and subsequently published by that third party on a newspaper internet site. 3The circumstances of the substantive matter are set out in the decision in QQ v Commissioner of Police, NSW Police Force [2011] NSWADT 54. On the application of the Applicant, the Tribunal issued summonses requiring the Respondent to produce documents. The Respondent's objections to summons were the subject of that determination. 4The Applicant seeks leave of the Tribunal to use a report ("the report") and emails ("the emails") obtained under summons in these proceedings in furtherance of foreshadowed common law claims in the Supreme Court against the Respondent and other named individuals ("the anticipated proceedings"). For ease of reference, I will refer to the report and the emails collectively as "the documents". 5The application is based on the assumption that as the documents have been obtained by compulsory means during legal proceedings they are subject to an implied undertaking that they not be used except for the purposes of the action. 6The Applicant submits that there are special circumstances justifying his being released from his implied undertaking or at least modifying it so as to enable him to pursue the anticipated proceedings. 7The Applicant foreshadowed claims against the Respondent for damages for defamation, breach of confidentiality, misfeasance in public office, breach of statutory duty and negligence; and claims against other individuals for damages for defamation and breach of confidentiality. 8The Respondent has opposed the grant of leave. Principles relevant to release from the obligation in respect of documents produced pursuant to coercive processes 9Traditionally, it has been accepted that documents produced in response to the exercise of coercive powers of a court or tribunal are the subject of what is often described as an "implied undertaking" not to use them for a purpose other than the conduct of the legal proceedings in question: Harman v Secretary of State for the Home Department [1983] 1 AC 280. 10The purpose of the implied undertaking is to prevent any abuse of the Court's procedures: Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 . 11The implied undertaking affords a particular protection accorded in the interests of administration of justice. It is owed not to the owner of the documents but to the court, and the function of the court in seeing that the obligation is observed is directed to the maintenance of those interests, and not to the enforcement of the law relating to confidentiality. The implied undertaking provides a limited right of privacy by allowing parties to prevent the dissemination or use of material that is produced or provided during legal proceedings: Harman v Secretary of State for the Home Department. 12The undertaking restricts not only the use of documents obtained during legal proceedings, but the creation and use of new documents that are derived from or based upon information obtained during legal proceedings without leave from the court to do so: Pacific Basin Exploration Pty Ltd v XLX (NL) [1985] WAR 11; (1984) 2 IPR 489, 13In Hearne v Street (2008) 82 ALJR 1259 the High Court considered the law in relation to implied undertakings. In their joint judgment, Hayne, Heydon and Crennan JJ at [96] said as follows: "Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits." 14At [97], Hayne, Heydon and Crennan JJ noted that it is common to speak of the relevant obligation as flowing from an "implied undertaking", citing amongst others Harman v Secretary of State for the Home Department [1983] 1 AC 280 at 304, 309, 319, 320 and 321; Crest Homes PLC v Marks [1987] AC 829 at 853. At [105] to [108], their Honours stressed the substantive nature of the obligation which is "imposed by law", and that there is nothing voluntary about the "undertaking". 15The position was stated by Hobhouse J in Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 764; [1991] 3 All ER 878 at 885 as follows: "The expression of the obligation as an implied undertaking given to the court derives from the historical origin of the principle. It is now in reality a legal obligation which arises by operation of law by virtue of the circumstances under which the relevant person obtained the documents or information." 16This requirement attaches both to documents produced by a party and a third party in proceedings: P and W v Manny and Anor [2010] ACTSC 50 at [24] per Gray J. This prohibition extends to any use or disclosure other than for the purpose of the proceedings in which the documents were obtained. Any wider use is collateral and consequently improper, unless authorised by prior leave: Bell Group Ltd (in liq) v Westpac Banking Corporation (1998) 166 ALR 699 at 705-706. 17It has also been accepted that the obligation to use documents and information obtained under compulsion only for the purpose for which they were given also applies to documents and information obtained in administrative proceedings: see, for example, Otter Gold Mines Ltd v McDonald (1997) 147 ALR 322 in relation to documents produced pursuant to summons issued by the Registrar of the Commonwealth Administrative Appeals Tribunal. 18In Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 Mason CJ at 32-3 suggested that the implied undertaking is "subject to the qualification that once material is adduced in open court proceedings it becomes part of the public domain, unless the court restrains publication of it." 19In Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 342, Ipp J, with whom Pidgeon J agreed, accepted that the implied undertaking would cease when documents were 'adduced in evidence'. The Court accepted that the two functions of the implied undertaking are to protect private rights to confidentiality and to assist the effective administration of justice. 20I see no reason why the obligation does not also apply to documents produced in response to a summons issued by the Registrar of this Tribunal. Documents produced in response to a summons issued by the Registrar pursuant to section 84 of Administrative Decisions Tribunal Act 1997 ("the ADT Act") are produced under compulsion. Pursuant to section 84(4), a person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence. Further, the Tribunal may report a failure to comply with a summons to the Supreme Court, which may deal with the matter as if it were a contempt of the Court under section 131(1)(a) and (b) of the ADT Act. 21It is my view that the implied undertaking applies in respect of documents produced in response to a summons issued by the Registrar of the Tribunal. It is also my view that the proposed uses of the documents constitute collateral or ulterior purposes. Grant of leave 22In Otter Gold Mines Ltd v McDonald & Ors (1997) 147 ALR 322 Sundberg J held at 328: 'The power to release from the implied undertaking of confidentiality is incidental to the power to require the documents to be produced. Production under compulsion gives rise to the undertaking. The power to release is intrinsically associated with that undertaking. It is the other side of the coin'. 23The procedure for obtaining leave to commence proceedings based on material obtained under subpoena is one of making application to the court to which the undertaking had been given: Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684 as well as seeking the consent of the party from whom the documents have been sought. 24A court will not release or modify the implied undertaking save in special circumstances and where the release or modification will not occasion injustice to the person producing the documents: Holpitt Pty Ltd v Varimu Pty Ltd . 25As Johnson J observed in Prime Finance Pty Limited and Ors v Randall and Ors [2009] NSWSC 361: 'The importance with which the courts have viewed the obligation is indicated by the fact that although it can be released or modified by the court, that dispensing power is not freely exercised, and will only be exercised where special circumstances appear: Hearne v Street at 159-160 [107]. Deciding whether special circumstances have been made out involves a balancing exercise which takes into account the particular nature of the material produced, the policy underlying the implied undertaking as to using the documents for the purpose of the proceedings in which they were produced, and any other relevant factors, and asks whether the needs of justice are better served by relieving from or maintaining the undertaking: Springfield Nominees Pty Limited v Bridge Lands Securities Limited (1992) 38 FCR 217 at 225; Wellness Pty Limited v Hamilton-Bond [2002] NSWSC 1259 at [8]; Premier Travel Pty Limited v Satellite Centres of Australia Pty Limited [2004] NSWSC 864 at [2]. 26In Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 110 ALR 685 at 693, speaking of the "special circumstances" required to justify releasing a party from the implied undertaking, Wilcox J said: 'For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.' 27In Holpitt Pty Ltd v Varimu Pty Ltd Burchett J considered what is meant by "special circumstances". His Honour held: 'As far as the expression "special circumstances" is concerned, it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? "Special" is one of those words which derive almost all their meaning from the context. In relation to animals generally, any man is special; but when you are speaking of poets, he may need to be a Milton. If all that is required is that, among the great number of cases in the court in which documents have been discovered, this one must evince some special feature which affords a reason for releasing or modifying the undertaking, there will be no difficulty. Circumstances in which there is a legitimate reason why documents discovered in one proceeding should be made available in another will, viewed in this way, be rare. In the ordinary course, the ordinary rule should apply, there being no special circumstance to suggest otherwise. ... In my opinion, the court's duty, in an application of this kind, is to consider whether the applicant has shown some circumstance which takes the matter out of the ordinary course, according to which production of documents pursuant to an obligation to make discovery involves the implied undertaking to the court; and, if so, whether an exercise of the court's discretion in favour of the application would be in the interests of justice.' Applicant's submissions 28The Applicant submits that there are special circumstances justifying his being released from his implied undertaking or at least modifying it so as to enable him to pursue common law claims in the Supreme Court. 29He submits that matters of public interest such as using civil litigation as an accountability mechanism against the police to establish the occurrence of corrupt conduct go well beyond "good reason". He points to views expressed in Commissioner of Police v Gabriel [2004] NSWSC 31 in support of his argument regarding the importance of holding police to account. At paragraph [15] by Hamilton J stated: "It is a central and vital principle in a democratic society that there be a Police Force which is not corrupt. Protests against alleged corruption by police officers (including particular police officers) and the manner in which they have been or have not been dealt with are very valid exercises of the free expression of views in our democratic society". Features the Applicant submits constitute special reasons 30By reference to the headings adopted by Wilcox J in Springfield Nominees Pty Limited v Bridge Lands Securities Limited the Applicant submitted: The nature of the document i)The documents are "State records" as defined in section 3(1) of the State Records Act 1998 and are not strictly private records. ii)The report includes statements with jurats which contemplate use in court proceedings. iii)The report demonstrates a breach of privacy, admitted by the Respondent. iv)The report demonstrates adverse findings against an employee of the Respondent. v)The emails do not bear any disclaimer or indication that they were sent confidentially. To the contrary, the emails were disseminated widely by the author of the emails. The circumstances under which the document came into existence i) The report arises in response to the Applicant's complaint to the Ombudsman which alleged offences by an officer of the Respondent ("Ms W") under section 62(1) of the PPIP Act. ii) The emails were unsolicited and designed to cause detriment to the Applicant The attitude of the author of the document and any prejudice the author may sustain i)It is submitted that the attitudes of the authors carry little weight if any. The authors were content to air the grievances publicly concerning the Applicant. It would be reasonable to assume that they now would not wish to be accountable for it. ii)There is no prejudice to the author of the report. He created the report pursuant to his obligations under sections 6 & 14 of the Police Act 1990 (NSW), and was not authored in a private capacity. iii)There could be little prejudice to the proposed defendants in the circumstances. Whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain i)The report was created after these proceedings had commenced. It was created for these proceedings and possible criminal proceedings in the Local Court. Most of the statements within the report contain jurats indicating an expectation that the matters would be heard and determined in court (and therefore enter the public domain) ii)If the matter proceeds to hearing and final determination the report may enter the public domain. It is submitted that in such circumstances, there should be 'no difficulty' for release from the implied undertaking. The parties could make unrestricted use of documents to the extent that they were actually contained in the transcript or judgment. iii) The emails must have been contemplated as entering the public domain (if not directly, then indirectly). Both authors were not hesitant to go public with their comments of the Applicant to the media. The nature of the information in the document i) The report contains findings and supporting evidence that Ms W engaged in corrupt conduct as defined in section 8(1)(d) of the Independent Commission Against Corruption Act 1988. That information was personal to the Applicant. The breach of confidence is highlighted by the report and the findings. ii)The report contains defamatory material of the Applicant. iii)The Respondent ought not be permitted, as a matter of public policy, to restrain the use of the report for the purpose of these proceedings only. This is more so given the agency's expectation to be a model litigant. iv)The nature of the emails is that they were not confidential. They are defamatory of the Applicant. The likely contribution of the document to achieving justice in the other proceeding i)The report was created for the purpose of gathering evidence to determine if Ms W engaged in "corrupt conduct" and if so to support any prosecution or proceedings. The evidentiary utility will be similar in the anticipated Supreme Court proceedings. ii)The Applicant is entitled to commence a claim based on the media reports in any event. The documents however, will assist in properly pleading the claim. It will assist with court efficacy and assist the parties' obligations pursuant to section 56 of the Civil Procedure Act (for the just, quick and cheap disposition of the proceedings). It would be likely that such documents would be discoverable in such proceedings in any event. iii)Without the documents justice would at least be stifled and significant cost increased. iv)Without the documents, the Applicant would be unfairly prejudiced by not being permitted to properly plead his claim, nor put the documents to witnesses, if required to, in respect of a contested fact or prior inconsistent statement. v)The emails are crucial for a full and adequately pleaded claim against the author of one of the emails. 31The Applicant further submitted that any use of the documents in the Supreme Court proceedings would be under the restriction of a similar implied undertaking as to the use for the purposes of the proceedings in the Supreme Court. Additionally, its use will be able to be protected both by the implied undertaking in the Supreme Court or by any necessary confidentiality orders. To the extent that it deals with issues relevant to the resolution of the controversy in the Supreme Court, the Court should have available to it relevant material which may illuminate matters in the Court. 32It is further submitted that the Supreme Court should not be deprived of information relevant and central to the issues it is required to determine. Consideration should be given to the overriding purpose in section 56 of the Civil Procedure Act 2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 33Unnecessary time and costs will be incurred if these documents are subject to a preliminary discovery process in the Supreme Court, pursuant to particularly with respect to preliminary discovery. 34It is submitted that, as the Court opined in Liberty Funding , it is not only appropriate, but it is in the interests of justice, that leave be granted to use the documents. The Applicant contends that for these reasons the implied undertaking in respect of the documents ought be modified to permit the Applicant the use sought. Respondent's submissions 35The Respondent does not consent to the use of the report and the emails for the foreshadowed collateral purposes. 36The Respondent contends that in undertaking his investigation, the author of the report was performing official duties on behalf of the Respondent. As such he was required to treat all information he obtained in the course of his investigation as strictly confidential, "and on no account without proper authority divulge it to anyone": clause 75 of the Police Regulation 2008. 37The report was produced as a result of an investigation conducted in accordance with the "Procedural Guidelines for Dealing with Misconduct as a Disciplinary Matter and the Taking of Disciplinary Action pursuant to Part 2.7, Division 2 of the Public Sector Employment and Management Act 2002 (NSW)" ("the Procedural Guidelines"). 38Whilst a person the subject of a misconduct investigation conducted pursuant to the Procedural Guidelines is informed that, following the completion of the investigation, a copy of the investigation report will be provided to the relevant Department Head (clause 11.8 of the Procedural Guidelines), there is otherwise a requirement that confidentiality be maintained. 39The Respondent relies on the decision in Mann v Medical Defence Union Ltd [1997] FCA 45. In Mann , Ryan J declined to grant leave to allow a party to use information obtained in the course of proceedings for breach of contract (and contravention of the Trade Practices Act 1997) to found an action in defamation. Ryan J held: "In the ordinary course of things, an action in defamation is instituted because publication of the allegedly defamatory material has come to the notice of the plaintiff. In the present case, there is nothing to suggest that the publication of the document which, it seems, was severely restricted, would ever have come to the notice of the applicant had it not been for the MDU's obligation to give discovery of it in the present action. To allow its use to frame a cause of action in defamation would expose the MDU to a hazard or potential liability quite unrelated to that in contemplation when it was discovered. I therefore regard it as an inappropriate exercise of the Court's discretion to grant leave to use it to frame a cause of action in defamation against either the MDU or Mr Lilienthal." 40Adopting the language used in Mann , the Respondent submits that there is 'nothing to suggest" that the contents of the report would have come to the notice of the Applicant had it not been for the Respondent's obligation to produce it pursuant to the summons issued in the Tribunal. It says that in these circumstances to allow the report to be used to frame causes of action in defamation, breach of confidentiality, misfeasance in public office, breach of statutory duty and negligence would be to expose the Respondent to a hazard or potential liability quite unrelated to that in contemplation when the report was produced. 41The Respondent further submits that: - the report and the emails were not created for the purposes of litigation. - the report contains information, including personal information, disclosed to the author of the report, being information that was revealed in the specific context of his investigation into allegations against Ms W. - the public policy considerations underlying the obligation and the potential "chilling effect" that granting leave could have (i.e. people may be unlikely to be as forthcoming in investigative processes if in doing so they may be exposed to collateral attack), speak to the reason why leave should be declined. - the emails comprise emails to officers of the NSW Police Force. Within the report there is a statement and record of interview of the author of the emails. - if leave were granted to the Applicant to use the report and the emails for collateral purposes, that course would, to the extent that it led to the institution of proceedings against him, adversely impact on the author of the emails' interests. 42The Respondent further submits that the question of whether the report and the emails are likely to contribute to the achieving of justice in the Applicant's anticipated proceedings is inherently difficult to assess. Leave is not sought to use the report and the emails for the collateral purpose of proceedings that are otherwise on foot but to provide the foundation for the institution of proceedings. 43The Respondent submits that the inference that is open to be drawn is that, but for the report and the emails being produced in response to the Applicant's summons, the Applicant would not have had the foundation for the anticipated proceedings. Further, it cannot be said that these anticipated proceedings are closely connected with these proceedings. This speaks against leave being granted: Mann at 9 of 10. 44The Respondent submits that the Tribunal should refuse the Applicant leave to use the report and the emails for any collateral purposes. Discussion 45I do not agree with the Respondent's submission that the Applicant would not have had the foundation for the anticipated proceedings but for the report and the emails being produced in response to the summons. In my view, it is likely that the basis for the applications is otherwise available to the Applicant. 46I do not consider that the views expressed in the decision in Mann v Medical Defence Union Ltd are applicable in the circumstances of this matter. 47Nevertheless, it is clear from the authorities that release from or modification of the implied undertaking should not be given other than in special circumstances and where the release or modification will not occasion injustice to the person producing the documents. 48For the reasons argued by the Applicant, I am satisfied that the implied undertaking should be modified to permit the use of the documents in the anticipated proceedings. 49I am satisfied that special circumstances have been made out. I am satisfied that there exists "a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present". 50I consider that the applicant "has shown some circumstance which takes the matter out of the ordinary course" and that an exercise of the Tribunal's discretion in favour of the application "would be in the interests of justice." 51In particular, I have been persuaded by the Applicant's arguments that this modification is likely to contribute to achieving justice in the other proceeding. It will assist with court efficacy and assist the parties' obligations pursuant to section 56 of the Civil Procedure Act. It serves no purpose in repeating those arguments here. 52Similarly, I am not satisfied that the modification will occasion injustice to the Respondent or the authors of the documents. Any use of the documents in the Supreme Court proceedings will be under the restriction of a similar implied undertaking in the Supreme Court and the protection of any necessary confidentiality orders. 53Without the documents justice would at least be stifled and significant cost increased and the Applicant would be unfairly prejudiced. Order The Applicant has leave to use documents produced pursuant to summons issued in these proceedings in the anticipated proceedings in the Supreme Court. ********** 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: 21 November 2011