Tan v Commissioner of the New South Wales Police [2012] NSWSC 1580

Supreme Court New South Wales

Medium Neutral Citation: Tan v Commissioner of the New South Wales Police [2012] NSWSC 1580 Hearing dates: 6 September 2012 Decision date: 19 December 2012 Jurisdiction: Common Law Before: Hall J Decision: I make declarations in the following terms. [The references to the Schedules in the declarations are references to Schedules to Dr Tan's affidavit sworn 5 September 2012.] (1) The 19 pages of handwritten notes made by Dr Tan and identified in Schedule 1 as "Bundle 1" are subject to legal professional privilege. (2) The handwritten notes of Dr Tan, "Bundle 2", on Intercontinental Hotel letterhead in Schedule 1 are subject to legal professional privilege. (3) The document described in "Bundle 3", being one A5 page of handwritten notes in Schedule 1, is subject to legal professional privilege. (4) Pages 1 - 4 inclusive in Bundle 4 are subject to legal professional privilege. (5) In respect of Schedule 2 - the digital data constituting the "data dump" extracted by the UFED on 19 January 2012 is not protected by legal professional privilege. (6) The data extracted from Dr Tan's mobile phone by the UFED and subsequently transmitted on 19 January 2012 from the UFED to Mr Sobbi's computer, included as part of Schedule 2 is not protected by legal professional privilege. (7) The PDF and Excel spreadsheets based on or derived from the data extracted from Dr Tan's mobile phone were brought into existence for the dominant purpose of Dr Tan's lawyer providing him with legal advice and for use in any proceedings in respect of the two complaints, by MW and SB. The PDF and Excel versions are protected by legal professional privilege. (8) The printout copies of the two spreadsheets contained within the PDF and Excel versions were produced for the dominant purpose of being provided to Dr Tan's lawyer for the purpose of legal advice and for use in respect of any proceedings arising from the complaints of SB and MW and accordingly are protected by legal professional privilege. (9) The documents in Schedule 3 were brought into existence for the dominant purpose of being provided to Dr Tan's lawyer for the purpose of obtaining legal advice and as necessary for use in legal proceedings. Those documents are protected by legal professional privilege. (10) The document in Schedule 4, item [7](a), is protected by legal professional privilege. (11) The document in Schedule 4, item [7](e), is not protected by legal professional privilege. Order (1) Leave to file further affidavit if the claim for legal professional privilege in respect of page 5 of Bundle 4 is pressed. (2) I grant liberty to either party to apply in respect of the form of the declarations made and set out above. (3) I reserve any question of costs. Catchwords: EVIDENCE - LEGAL PROFESSIONAL PRIVILEGE - electronic and computer data records seized by police in course of executing lawfully issued search warrants - plaintiff requested forensic examiner to extract data from his Blackberry mobile phone - electronic records containing digital data stored on the mobile phone were extracted and transmitted by the expert examiner to his computer - plaintiff provided with customised reports containing limited data derived from the first generation of material transmitted to the examiner's computer - plaintiff subsequently had electronic memory on the mobile phone wiped.