NSW Commissioner of Police v Zurich Australian Insurance Ltd [2016] NSWCA 365

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: NSW Commissioner of Police v Zurich Australian Insurance Ltd [2016] NSWCA 365 Hearing dates: 6 September 2016 Decision date: 19 December 2016 Before: Meagher JA at [1]; Ward JA at [54]; Emmett AJA at [55] Decision: 1. Grant leave to appeal. 2. Set aside orders 1 and 6 made by the primary judge on 28 April 2016. 3. Set aside that part of the subpoena issued in the underlying proceedings on 20 November 2014 and addressed to the applicant Commissioner which requires the production of "all audio recordings of conversations taken by NSW Police during the course of the investigation". 4. Order that the material produced by the applicant on 30 May 2016 pursuant to order 1 made on 28 April 2016 be returned to the Crown Solicitor, as solicitor for the applicant. 5. Order the first respondent, Zurich, to pay the costs of the applicant and of the second and third respondents in respect of the applicant's notice of motion dated 27 April 2016. 6. Order the first respondent pay the applicant's costs of the application for leave to appeal, and of the appeal. Catchwords: APPEAL – application for leave – where subpoena required the Commissioner to produce recordings which were "protected information" under Surveillance Devices Act 2007 (NSW) – where prohibition under s 40(1) against use, communication or publication of such information – where Commissioner applied to set aside subpoena on basis that lacked any legitimate forensic purpose because recordings could not lawfully be used in proceedings – where primary judge ordered production of recordings to Court – whether subpoena lacked legitimate forensic purpose – whether primary judge erred in ordering production – subpoena set aside