Supreme Court New South Wales Medium Neutral Citation: Jean Luc Clavel & Anor v John Savage & Ors (No 3) [2010] NSWSC 5 Hearing dates: 16 November 2010 Decision date: 16 November 2010 Before: Rothman J Decision: (1)Paragraphs (i)(i), (i)(ii), (k), (h), (r), (s)(iii), (s)(iv), (s)(v) and (u) of the subpoena struck out; (2)The Commissioner is to file a schedule of documents said to be privileged under s 170 of the Police Act 1990 Catchwords: PROCEDURE - Subpoena - Objection to production - Statutory privilege under s 170 Police Act 1990 - Whether legitimate forensic purpose - Interrelationship of Police Act 1970 and Uniform Civil Procedure Rules 2005 (NSW) r 1.9(3) - Definition of "privileged information" and "privileged document" Legislation Cited: Evidence Act 1995 Police Act 1990 Uniform Civil Procedure Rules 2005 Cases Cited: Carnell v Mann [1998] FCA 1566; (1998) 89 FCR 247 Esso Australia Resources Ltd v Federal Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 Kennedy v Wallace [2004] FCAFC 337 Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Saleam (1989) 16 NSWLR 14 Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 Category: Interlocutory applications Parties: Jean Luc Clavel (First Plaintiff) Sarah Luc Clavel (Second Plaintiff) John Savage (First Defendant) Kim Savage (Second Defendant) The State of New South Wales (Third Defendant) Representation: Counsel: D Baran/M Eirth (Plaintiffs) Self represented (First Defendant) Self represented (Second Defendant) P W Neil SC/G Giagios (Third Defendant) Solicitors: File Number(s): 2002/69251 Publication restriction: None EX TEMPORE Judgment (REVISED) 1HIS HONOUR: The Court, as presently constituted, has issued ex tempore reasons for judgment ("the earlier judgment"), dealing with an objection that certain documents are privileged, under the common law principles, by virtue of the operation of s 170 of the Police Act 1990 ("the Act"). 2Now there is further objection with which the Court must deal. The Commissioner of Police ("the Commissioner") subsequently objected to a number of paragraphs in the subpoena directed to the Commissioner on the basis that the provisions of the Uniform Civil Procedure Rules 2005 ("UCPR"), particularly UCPR 1.9, and the definition of "privileged document", together with s 170, render the documents privileged. Further, the Commissioner submitted that there is not a legitimate forensic purpose disclosed by the description of the documents, and other documents subject to subpoena, and objects to their production. 3I have, for reasons of urgency, announced the outcome of this application, and reserved reasons, although some short comments were made during the course of the exchanges with counsel. Operation of the Uniform Civil Procedure Rules 4The earlier judgment, unreported, 1 November 2010, set out the terms of s 170 of the Act. It is necessary to recite some parts of the UCPR. 5The most relevant provisions of the Rules are the two definitions to which I have earlier referred and UCPR 1.9(3), which are in the following terms: "'privileged document' means a document that contains privileged information." "'privileged information' means any of the following information: (a) information of which evidence could not, by virtue of the operation of Division 1 of Part 3.10 of the Evidence Act 1995, be adduced in the proceedings over the objection of any person, (b) information that discloses a protected confidence, the contents of a document recording a protected confidence or protected identity information (within the meaning of section 126B of the Evidence Act 1995) where: (i) consent by the protected confider (within the meaning of section 126C of that Act) has not been given to disclosure of the confidence, contents or information, and (ii) section 126D of that Act would not operate to stop Division 1A of Part 3.10 of that Act from preventing the adducing of evidence in respect of the confidence, contents or information, (c) information of which evidence could not be adduced in the proceedings by virtue of the operation of section 126H of the Evidence Act 1995, (d) information that tends to prove that a party by whom a document is required to be made available, or by whom an interrogatory is to be answered, under section 128 of the Evidence Act 1995 or section 87 of the Civil Procedure Act 2005: (i) has committed an offence against or arising under an Australian law or a law of a foreign country, or (ii) is liable to pay a civil penalty, (e) information the admission or use of which in a proceeding would be contrary to section 129 of the Evidence Act 1995, (f) information that relates to matters of state within the meaning of section 130 of the Evidence Act 1995, (g) information to which section 131 of the Evidence Act 1995 applies, (h) information: (i) the disclosure of the contents of which, or (ii) the production of which, or (iii) the admission or use of which, in the proceedings would be contrary to any Act (other than the Evidence Act 1995) or any Commonwealth Act (other than the Evidence Act 1995 of the Commonwealth), but does not include information that the court declares not to be privileged information for the purposes of those proceedings." "1.9 Objections to production of documents and answering of questions founded on privilege ... (3) A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information. (4) A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled." 6The provisions of UCPR 1.9(3), when read with the extended definitions of privileged document, expand significantly the class of documents, which, under the common law, would be privileged. Moreover, UCPR 1.9(4) renders a document to which UCPR 1.9(3) applies such that a person objecting to the production of it cannot be compelled to produce the document. Thus the provisions of UCPR 1.9(4), coupled with UCPR 1.9(3) and the definitions to which reference has already been made, together overcome the distinction between documents that are inadmissible (in a relevant sense) into evidence, because of privilege, and those that are privileged from production. 7As a consequence of the foregoing, the distinction drawn by the Court of Criminal Appeal between admissibility and production, to which reference was made in the earlier judgment, is, for the defined class of documents, no longer applicable: see R v Saleam (1989) 16 NSWLR 14 at 18, per Hunt J, with whom Carruthers and Grove JJ concurred. That distinction was the basis of the earlier judgment. 8The difficulty, however, is determining whether documents caught by s 170 of the Act are within the defined class; i.e. does the definition of "privileged document" in the UCPR apply to documents described by s 170 of the Act? The answer is not perfectly clear from an examination of the text of each provision. 9A privileged document is defined by the UCPR as one that contains privileged information, and, for relevant purposes, privileged information includes information the admission of which into evidence in the proceedings would be contrary to s 170 of the Act. The difficulty is created by the fact that s 170 of the Act does not deal, expressly, with information. It deals with documents (hereinafter "protected documents"). If information in a "protected document" is transferred to another document (or the document is copied and used by the Commissioner for another purpose) the information is not inadmissible and the subsequent document is not protected. 10Further, as is clear from the terms of s 170(2)(c) of the Act, a witness may willingly produce the document (even, it seems, the document of another in her or his possession) and, it seems, disclose the content of the document. The issue is complicated further by the wording of the definition of "privileged information". While it may be meaningful to refer to "the disclosure of the contents" of a document, it is far less obvious that one could disclose "the contents of [information]" to which subparagraph (h)(i) refers. 11The foregoing must be considered in the context of s 170 of the Act and the fact, referred to in the earlier judgment, that the information may be disclosed by a number of persons who may be in possession of it. Usually such a fact will tell against the existence of a privilege. 12Nevertheless, and notwithstanding the foregoing, the correct approach to the construction of the rule, and its application to documents covered by the inadmissibility provisions in s 170 of the Act, is to take a purposive approach: Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 384; and reconcile otherwise inconsistent provisions: Project Blue Sky, supra, at 381-382. 13The purpose of s 170 of the Act is plainly to protect from use in a court (other than specified tribunals and for specified and related purposes) those document that are brought into existence for the purpose of a complaint against a Police Officer. While ever such a document retains that status (i.e. it may have or acquire another purpose) it may not be admitted into evidence. The Commissioner, unless she or he is a witness, does not even have the capacity to waive that protection. 14On the other hand, the obvious purpose of UCPR 1.9(3) and 1.9(4) is to avoid the ludicrous position that a document that may, according to appropriate legislative protections, be privileged from use in evidence, cannot be the subject of an order for compulsory production. 15Even though s 170 of the Act protects documents, as such, rather than information, it would be inconsistent with the purpose of UCPR 1.9 if the Court were able to compel the Commissioner to produce documents that the legislature has prevented from being admitted in the proceedings. Indeed, the reference to "the proceedings" in paragraph (h) of the definition of "privileged information" supports an approach that would render documents "privileged" for some proceedings but not others, and, as a consequence, seems to support the construction of the provision that would allow a document (or information in it) to be privileged for some purposes only. 16I should, for abundant caution, note that no issue has arisen as to the purpose for which any document has been brought into existence and the Court need not deal with whether the existence of any other purpose would vitiate the protection, or whether substantial purpose or dominant purpose is sufficient: see s 118 and s 119 of the Evidence Act 1995; and Kennedy v Wallace [2004] FCAFC 337 at [13], per Black CJ and Emmett J and at [157]-[159], per Allsop J (as he then was); Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 at 689 and 692; Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at [39], [77], [172]; Carnell v Mann [1998] FCA 1566; (1998) 89 FCR 247; and Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47, per Spigelman CJ at [6], [9], and [24]. 17As a consequence of the foregoing, I have struck out paragraphs (i)(i), (i)(ii), (k), (s)(ii), (s)(iii) and (u) of the subpoena. I have required the Commissioner to file a schedule of the documents said to be privileged under this heading. Legitimate forensic purpose 18The other paragraphs of the subpoena in dispute between the relevant parties were paragraphs (e), (f), (g), (h), (i) [the preamble], (k), (p), (r), (s) and (v). Paragraphs (e), (f), (g), the preamble to (i), (p), s(i) and (v) plainly have a legitimate forensic purpose, given the issues in these proceedings. Paragraph (r) also has such a purpose, but the Commissioner has nothing to produce in answer thereto. 19Notwithstanding the broad allegation against the Police in these proceedings, there are significant problems associated with the remaining paragraphs. 20Paragraph (h) relates to the investigation of complaints by the plaintiff that some persons (not police officers) called the plaintiff a paedophile. There is no longer an offence of criminal defamation and, assuming, without accepting, that the allegations about which the complaints were made were defamatory, they were not matters in which any person could reasonably expect the Police to be involved. Defamation is a civil matter to be agitated between the parties and is not a matter that concerns, or that can concern, the Police in any official capacity. I have assumed for the purposes of the above that third parties (i.e. other than the plaintiffs, the defendants and the person publishing the comment) have heard the comments. 21Paragraph (r) has been dealt with at [18], supra, and paragraph (s)(iv) cannot have a forensic purpose in these proceedings, and would necessarily yield nothing that could have such a purpose. 22Paragraph (s)(v) seeks medical and/or psychiatric/psychological and other departmental records implying that the cause of leave, retirement, discharge etc. of certain named personnel arises from each officer's dealings with the first plaintiff. The facts and circumstances of those dealings are relevant or could lead to a relevant line of enquiry, but the psychological effect (in the relevantly described sense), or whether leave or retirement was occasioned, cannot. 23It is for the party seeking production to disclose the legitimate forensic purpose and the Court was not satisfied that the documents sought in paragraphs (h), (r), (s)(iv) and (s)(v) have such a purpose and has struck out those paragraphs. 24For the foregoing reasons, the Court made its orders in relation to the subpoena addressed to the Commissioner of Police. ********** 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: 27 November 2014