Supreme Court New South Wales Medium Neutral Citation: Beckett v The State of New South Wales (No. 2) [2012] NSWSC 444 Hearing dates: 23 February 2012 Decision date: 15 May 2012 Jurisdiction: Common Law Before: Davies J Decision: (1) I dismiss the Notice of Motion by the Applicant TCN Channel Nine Pty Limited filed 6 October 2011. (2) I dismiss the Amended Notice of Motion of the Plaintiff filed 12 September 2011. (3) The documents produced in answer to paragraph 1 of the Subpoena issued by the Defendant on 5 August 2011 are to be placed in an envelope and marked "Confidential". (4) The documents in the envelope marked "Confidential" are not to be disclosed to any person without the leave of a judge of the Court other than the parties' legal representatives. (5) The legal representatives of the parties shall: (a) only use the contents of the envelope marked "Confidential" for the sole purpose, and only to the extent necessary, for these proceedings, (b) not disclose the contents of the envelope marked "Confidential" to any person or entity without the leave of a Judge of the Court. (6) The Applicant and the Plaintiff are to pay the Defendant's costs of the Motions. Catchwords: PROCEDURE - subpoenas - application to set aside - whether legitimate forensic purpose - whether it was "on the cards" that the documents would assist the case of the party issuing the subpoena - proceedings for malicious prosecution and false imprisonment - prior proceedings for defamation against third party - settlement of defamation proceedings - whether settlement documents should be produced - confidentiality issues attending settlement documents - subpoena not set aside Legislation Cited: Defamation Act 1974 Cases Cited: Alister v R [1983] HCA 45; (1984) 154 CLR 404 Associated Newspapers Ltd v Dingle [1964] AC 341 Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 Beckett v The State of New South Wales (No. 1) [2011] NSWSC 818 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Chappell v Mirror Newspapers Ltd [1984] Aust Torts Reports 80-691 Houda v The State of New South Wales [2005] NSWSC 1053 Category: Interlocutory applications Parties: Roseanne Beckett (Plaintiff) The State of New South Wales (Defendant) Representation: Counsel: P Blackett SC (Plaintiff) M Gollan (Defendant) M Richardson (Channel 9) Solicitors: Turner Freeman (Plaintiff) Crown Solicitor's Office (Defendant) Johnson Winter & Slattery (Channel 9) File Number(s): 2008/289411 Judgment 1There are two applications, one by the Plaintiff, and one by a third party recipient of a subpoena ("the Applicant"), to set aside paragraph one of that subpoena which was issued by the Defendant. 2The background to the proceedings are set out in my judgment in Beckett v The State of New South Wales (No. 1) [2011] NSWSC 818. 3On 28 October 2001 TCN Channel 9, in its Sixty Minutes program, broadcast a segment concerning the Plaintiff and the matters that led to her charges and subsequent convictions. The structure of the broadcast comprised an historical overview of the Plaintiff's relationship with her former husband Barry Catt, her conviction for his attempted murder, and her subsequent release from prison. There followed interviews with the Plaintiff's two stepsons Chris Catt and Tony Catt, during the course of which various allegations were made, including allegations against the Plaintiff of sexual abuse. 4Subsequently the Plaintiff sued Channel 9 for defamation by reason of the broadcast of that program. The proceedings were settled by the entry into a Deed of Release dated 24 March 2011 and by the filing of a Notice of Discontinuance on or about 12 April 2011. 5The subpoena issued by the Defendant upon Channel 9 seeks in paragraph one: Any documents in relation to the settlement or termination of Supreme Court proceedings (The proceedings 20321 of 2007 including, but not limited to: (a)Any Deed of Settlement or of Release, however described; (b)Any terms of settlement; (c)Any Notices of Discontinuance; (d)Any correspondence forming part of an agreement terminating or settling the proceedings. 6There is no dispute that the Deed of Release would fall within paragraph one of the subpoena. 7The Deed contains a confidentiality clause which extends to the Terms of Settlement contained within the Deed. There is evidence also that the documents the subject of paragraph one of the subpoena include documents that are commercially sensitive to Channel 9 and that if certain information contained in those documents was released to the public as a result of open court proceedings such release might have a detrimental impact on current and future commercial negotiations undertaken by Channel 9. 8The documents have been produced to the Court in accordance with the requirements of the Subpoena. 9The Defendant sought to justify the subpoena on the basis, in substance, that there is or might be an overlap in the damages payable to the Plaintiff by reason of the defamation and the damages that would be payable if she is successful in establishing malicious prosecution. 10The Defendant points to two aspects of the Deed which might be of relevance in the present proceedings. The first is the amount of any settlement it discloses. The second is said to be what is contained in the recitals to the Deed. 11The Applicant submits that there is no legitimate forensic purpose to the documents sought in the subpoena. This is for a number of reasons. First, if a payment is disclosed by the Deed that payment could only be in respect of the defamation case as pleaded and could not be relevant to the causes of action pleaded in the present proceedings. Secondly, reliance is placed, analogously, on the principle found in Chappell v Mirror Newspapers Ltd [1984] Aust Torts Reports 80-691 at 68,953 - 68,954 and what is found in s 48 Defamation Act 1974. 12The Applicant additionally relies upon the confidentiality provisions in the Deed but accepts that confidentiality concerns would not of themselves amount to a ground that would enable the subpoena to be set aside. The Applicant submits, however, some weight should be given to the issue of confidentiality when considered in combination with other matters. 13In Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65 Beazley JA (with whom James and Kirby JJ agreed) said: [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. ... 14The Defendant points to the commonality of some of the matters for which damages are paid in both defamation and for the torts of false imprisonment and malicious prosecution in respect of which the Plaintiff also sues in the present case. 15In that regard Cooper AJ in Houda v The State of New South Wales [2005] NSWSC 1053 said this about the heads of damage in respect of the torts of false imprisonment and malicious prosecution: [349]As pointed out by Powell JA in the case of McDonald v Coles Myer Limited 1995 Australian Torts Report 81-361 at pages 62,689 and following, the tort of false imprisonment consists in the act of arresting or imprisoning any person without lawful justification, or otherwise preventing him, without lawful justification, from exercising his right of leaving the place in which he is. To constitute the tort there need be no imprisonment in the sense of incarceration, it being sufficient that the person in question has been deprived of his, or her, personal liberty for any time, however short. [350]His Honour went on to point out that the principal heads of damage to which regard appears to have been paid are the injury to liberty, the injury to the plaintiff's feeling, that is the indignity, mental suffering, disgrace and humiliation with any attendant loss of social status and, where it can be demonstrated that the imprisonment has had a deleterious effect on the plaintiff's health any resulting physical injury, illness or discomfort. [351]In addition, the manner in which the imprisonment is effected may lead to an award of aggravated compensatory damages, as also may the subsequent conduct of the defendant, if it tends to show that the defendant is persevering in the charge. However, Powell JA points out that it has been suggested that an unsuccessful plea by the defendant that the plaintiff was guilty of the offence charged against him by the defendant should not lead to an aggravation of damages, unless it is shown that the defendant made the charges mala fide. [352]In the case of Little v Law Institute of Victoria [1990] VR 247 Kaye and Beach JJ quoted from Savile v Roberts [1698] 1Ld. Raym.374 the following three forms of damage any one of which would support an action for malicious prosecution: 1.The damage to a man's fame, as if the matter whereof he is accused be scandalous. 2.The second sort of damages, which would support such an action, are such as are done to the person; as where a man is put in danger to lose his life, or limb, or liberty, which has been always allowed a good working foundation of such an action. 3.The third sort of damages, which would support such an action is damage to a man's property, as where he is forced to expend his money in necessary charges to acquit himself of the crime of which he is accused, which is the present charge. That a man in such cases put to expenses, is without doubt, which is an injury to his property, and if that injury is done to him maliciously, it is reasonable that he shall have an action to repair himself. [353]In McDonald's case (above) Powell JA put it this way at 62,691: The principal heads of damage to which regard have conventionally been had in relation to a claim for malicious prosecution are injury to the plaintiff's reputation, injury to his feelings that is for the indignity, humiliation and disgrace caused him by the fact of the charge being referred against him, pecuniary loss - as, for example, as a result of his being dismissed from his employment - and the expenses incurred in defending himself against the prosecution. ... [490]Earlier in this judgment I set out the views of Powell JA in the case of McDonald v Coles Myer Limited (1995) Australian Torts Reports 81-361 as to the classes of damages recoverable in actions for false imprisonment and malicious prosecution. There is no point in repeating them. [491]In the same case Clarke JA quotes at length from the speech of Lord Diplock in Cassell and Co Limited v Broome & Anor (1972) AC 1027. [492]Without repeating it here I would also refer to the speech of Lord Hailsham of St Marylebon LC appearing at pages 1070 and following. [493]His Lordship, although talking of damages for defamation, said words applicable to the present causes of action at page 1071: "In actions of defamation and in any other action where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge." [494]His Lordship quotes with approval from Windeyer J in Uren v John Fairfax & Sons Pty Ltd 117 CLR 115 at 150: "It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as a consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money." ... [497]Clarke JA in McDonald's case (above) at page 62,687, points out that the court has to take into account, as relevant to the solatium, the fact that the plaintiff had, following the arrest, suffered the hurtful experience of the trial which followed almost inevitably from the prosecution, the instant civil trial, the absence of any apology, the persistence in the false and hurtful allegations which were found not to be made out, and the damage to his reputation. [498]As is pointed out by Powell JA in McDonald's case the heads of damage recoverable in an action for malicious prosecution differ slightly from those recoverable in an action for false imprisonment or unlawful arrest or assault. However, there is a considerable amount of overlapping between the heads of damages recovered in each of these classes of action. 16The position in relation to damages for defamation was stated by Brennan J in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 69-70: [5]The chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation. Lord Radcliffe said in Dingle v. Associated Newspapers Ltd. (1964) AC 371, at p 396.): A libel action is fundamentally an action to vindicate a man's reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication. ... [6]Although damages are awarded to vindicate the plaintiff's reputation, damages are not awarded as compensation for the loss in value of a plaintiff's reputation as though that reputation were itself a tangible asset or a physical attribute which, once damaged, is worth less than it was before Dingle v. Associated Newspapers Ltd. In order to achieve the purpose of vindicating reputation, damages for defamation are quantified by reference, inter alia, to what is needed to achieve that purpose: those damages are not quantified by reference to a depreciation in the value of a plaintiff's reputation. Other heads of damage are compensation for the external consequences produced by the publication of the defamation and "a solatium" for the plaintiff's internal hurt, that is, for the complex of reactions that the plaintiff has experienced as the result of the publication and its external consequences. 17Paragraph 8 of the Amended Statement of Claim in the defamation proceedings said this: By reason of the publication of the matter complained of the Plaintiff has been injured in her credit, character and reputation and has been brought into public disrepute, scandal, odium and contempt and has suffered and will continue to suffer loss and damage. 18In the present proceedings paragraph 101 of the Amended Statement of Claim reads as follows: By reason of the matters aforesaid, the Plaintiff was wrongfully imprisoned, and deprived of her liberty, and she was greatly injured in her credit, character and reputation, and she suffered considerable mental and bodily pain and anguish, and she was put to considerable trouble, inconvenience, anxiety and expense, and she has been greatly injured in her business and has suffered loss and damage. 19The Defendant submits, based on the similarity in the formulation and constitution of damages in defamation proceedings on the one hand and malicious prosecution proceedings on the other, that should the Plaintiff represent herself as having had a good and unimpeached reputation prior to the broadcast in 2001, then those representations and the level of compensation paid directly bear upon the matters for determination in the current proceedings. The recitals are said to be particularly relevant as to the representations concerning her reputation. 20It would appear, therefore, on the Defendant's case that there does not need to be a commonality of matters complained of in the defamation proceedings and the present proceedings. What, on the Defendant's submission, is being inquired into is the Plaintiff's reputation generally. However, the Defendant submits that the two matters are intimately connected. 21The Defendant points also to paragraph 271 of the Plaintiff's Evidentiary Statement which is in these terms: On 28 October 2001, a program about me was broadcast on "60 Minutes" on Channel 9. The program contained a number of untrue and false allegations about me including an interview with Peter Thomas in which he again made untrue and false allegations against me, and interview with Vernon Taylor in which he made untrue and false allegations against me, an interview with Barry Catt in which he made untrue and false allegations against me, and an interview with Tony Catt in which he made untrue and false allegations against me and an interview with Christopher Catt in which he made untrue and false allegations against me. The program was an example of how my credit, reputation, character and business could be attacked wantonly because of what I had been put through by Thomas and Paget. This kind of thing has continued since, with the publication of a chapter in a book by Robin Bowles in 2007. 22Whilst it may be accepted that there is some overlap of the heads of damages between defamation on the one hand and malicious prosecution and false imprisonment on the other, questions about whether the law and the principles concerning damages from the law of defamation should be applied analogously to damages for the torts the subject of the present proceedings deflect attention from the true enquiry. That enquiry is whether the production of the documents sought serves a legitimate forensic purpose and whether it is on the cards that the documents will assist the Defendant's case. 23The enquiry is furthered by looking at the basis of the claim in the defamation proceedings and the claims in the present proceedings. 24In the defamation proceedings (which were brought under the Defamation Act 1974) the following imputations that were said to be defamatory of the Plaintiff were pleaded: (a)The Plaintiff sexually abused each of her four step children whilst they were under her care. (b)The Plaintiff compelled her stepson, then under the age of eleven, to perform sexual acts upon her; or alternatively (c)The Plaintiff compelled her stepson, then a young child, to perform sexual acts upon her. (d)The Plaintiff persuaded her two stepsons to make false allegations against their father that they had been sexually abused by him. (e)The Plaintiff compelled her stepson to assist her in trying to poison her husband. 25It can be seen that these imputations fall into two categories. The first concerns alleged sexual abuse by the Plaintiff of her step-children. The second concerns allegations that she influenced her step-children to make false allegations and to assist her in trying to poison her husband. 26The claims in the present proceedings allege wrongdoing on the part of three police officers which led to the arrest, the trial, the conviction and imprisonment of the Plaintiff for the offences more particularly detailed in my earlier judgment and other offences for which the Plaintiff was not sent to trial. Those matters for which she stood trial concerned various acts directed against her husband Barry Catt. 27The only matter common to both claims is a claim that the Plaintiff's reputation has been damaged by reason of the wrongdoing of both the Applicant in broadcasting the program and the police officers for what is alleged against them. Yet what the Plaintiff was compensated for by the Applicant was for the vindication of the Plaintiff's reputation injured by the imputations set out earlier. That is a matter quite separate from what is now claimed. Whilst it is true that it was the events the subject of the present proceedings which created the occasion for the broadcast, it cannot be said that the damage the Plaintiff suffered from the broadcast was caused by the events now complained of. Paragraph 271 of the Plaintiff's Evidentiary Statement, even if admissible, says no more than that. 28It is difficult to see how any damages which might be disclosed in the Deed could be offset against damages in the present proceedings. They were paid for the imputations made. The Plaintiff does not in the present proceedings complain about those matters at all. She complains that she was wrongly charged, convicted and imprisoned for acts directed against her husband, the basis for which involved fabrication by the police officers concerned. It is doubtful that the damages would have been affected by the matters now complained of. In Associated Newspapers v Dingle [1964] AC 341 at 396 Lord Radcliffe said: If they [the damages] could be whittled away by a defendant calling attention to the fact that other people had already been saying the same thing as he had said, and pleading that for this reason alone the plaintiff had the less reputation to lose, the libelled man would never get his full vindication. 29The position with regard to the recitals (if any) in the Deed may be different. If a recital in the Deed contained a statement about the reputation of the Plaintiff prior to the broadcast such a statement is likely to be relevant in the present proceedings because the causes of action and the matters alleged in the present proceedings arose prior to the broadcast. 30It would be a legitimate forensic purpose to test the Plaintiff on any statements contained in any recitals concerning her pre-broadcast reputation. Such recitals are likely to be admissions by her. It is arguable that the general damages recoverable in the present proceedings could be affected as a result of such testing. 31The more difficult question is whether it is on the cards that the Deed will assist the Defendant in that way, that is, that there are likely to be relevant recitals in the Deed. A few matters suggest that there are. First, it would be unlikely for a Deed of Release which had the effect of settling court proceedings not to contain any recitals. Secondly, because the essence of the proceedings was the Plaintiff's reputation it is on the cards that the recitals would mention her reputation. Thirdly, it is scarcely likely that any recital about the Plaintiff's pre-existing reputation would have said that she already had an impaired reputation because such a statement would tend to undercut any justification for any payment of damages to the Plaintiff under the Deed. It would also tend to be inconsistent with the Dingle principle, another matter that would make its presence in the Deed unlikely. 32As Gibbs CJ said in Alister at 414: 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. (emphasis added) 33In the present case it is known that there is a Deed of Release concerning the defamation proceedings. There is some likelihood that there will be recitals touching the Plaintiff's reputation. The Defendant would be left with a legitimate sense of grievance if it was not entitled to inspect the Deed so that the Plaintiff's evidence can be tested by the contents of the Deed. 34In my opinion it is on the cards that the Deed will materially assist the Defendant's case. The parties said, during the course of submissions, that they were content for me to inspect the documents if I felt it was necessary for the purpose of deciding the issue determined by this judgment. I have reached my determination without having inspected the documents. 35Legitimate concerns are raised by the Applicant about confidentiality concerning the Deed and the settlement. The Defendant accepts these concerns and the need for particular orders to be made restricting the present availability of the documents. 36I make the following orders: (1)I dismiss the Notice of Motion by the Applicant TCN Channel Nine Pty Limited filed 6 October 2011. (2)I dismiss the Amended Notice of Motion of the Plaintiff filed 12 September, 2011. (3)The documents produced in answer to paragraph 1 of the Subpoena issued by the Defendant on 5 August 2011 are to be placed in an envelope and marked "Confidential". (4)The documents in the envelope marked "Confidential" are not to be disclosed to any person without the leave of a judge of the Court other than the parties' legal representatives. (5)The legal representatives of the parties shall: (a)only use the contents of the envelope marked "Confidential" for the sole purpose, and only to the extent necessary, for these proceedings, (b)not disclose the contents of the envelope marked "Confidential" to any person or entity without the leave of a Judge of the Court. (6)The Applicant and the Plaintiff are to pay the Defendant's costs of the Motions. ******** 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: 15 May 2012