Court of Appeal Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v SG [2017] NSWCA 102 Hearing dates: 6 April 2017 Decision date: 29 May 2017 Before: McColl JA at [1]; Simpson JA at [2]; Emmett AJA at [3] Decision: (1) The application for leave to appeal is dismissed. (2) The costs of the application for leave be the parties' costs of the Motion of 8 April 2016, when it is ultimately determined. Catchwords: PROCEDURE - miscellaneous procedural matters - vexatious litigants and proceedings – application for summary dismissal on basis that proceedings constituted an abuse of process – whether primary judge erred in determining summary dismissal application before determining other motions before it APPEAL AND NEW TRIAL - appeal - general principles – preservation of appeal - whether open to the respondent to file an application for leave for appeal in order to preserve its rights once other motions before primary judge have been determined – leave refused without prejudice to respondent's entitlement to re-agitate summary dismissal motion after the disposition of other motions Legislation Cited: Crime Commission Act 2012 (NSW), s 80 Category: Principal judgment Parties: New South Wales Crime Commission (Applicant) SG (Respondent) Representation: Counsel: NJ Williams SC and B Mostafa (Applicant) CRC Newlinds SC and SH Hartford Davis (Respondent) Solicitors: Crown Solicitor's Office (Applicant) Laxon Lex Lawyers (Respondent) File Number(s): 2016/376036 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2016] NSWSC 1615 Date of Decision: 17 November 2016 Before: Rothman J File Number(s): 2015/194130 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. McCOLL JA: I agree with Emmett AJA's reasons and the orders his Honour proposes. 2. SIMPSON JA: I agree with Emmett AJA. 3. EMMETT AJA: On 2 July 2015, the respondent (SG) commenced proceedings in the Common Law Division (the Proceedings) against the applicant, the New South Wales Crime Commission (the Commission) claiming, inter alia, damages for breach of contract. In his statement of claim filed in the Proceedings (the Statement of Claim), SG alleged that he made a confidential agreement with the Commission (the Contract) whereby, in consideration of his providing information to the Commission, the Commission would pay him sums of money. He also alleged that it was a term of the Contract that the Commission agreed to keep the relationship between him and the Commission strictly confidential, and that his identity would be known only to a few select officers of the Commission. SG alleged that the Contract was made on behalf of the Commission by an officer of the Commission (the Officer) who subsequently left its employ. 4. SG has acknowledged that, in making the allegation that the Officer had authority to make the Contract on behalf of the Commission, he relied on information provided to him by the Officer. He also says that, in relation to other allegations in the Statement of Claim, he relied on information from the Officer to corroborate the allegations. The Commission contends that, in providing such information, the Officer acted in contravention of s 80 of the Crime Commission Act 2012 (NSW) (the Commission Act). 5. The effect of s 80(2) of the Commission Act, is, relevantly, that the Officer was prohibited from, directly or indirectly, except for the purposes of the Commission Act or otherwise in connection with the exercise of the Officer's functions under the Commission Act, making a record of any information or divulging or communicating to any person any information, being information acquired by the Officer, because of, or in the course of, the exercise of functions under the Commission Act. The effect of s 80(3) is, relevantly, that the Officer could not be required to produce in any court any document or other thing that has come into his possession, custody or control because of, or in the course of, the exercise of the Officer's functions under the Commission Act or to divulge or communicate to any court any matter or thing that has come to the Officer's notice in the exercise of his functions under the Commission Act. 6. However, under s 80(4), the Officer was permitted to divulge any such information for the purposes of and in accordance with the Commission Act, or for the purposes of a prosecution or disciplinary proceedings instituted as a result of an investigation conducted by the Commission in the exercise of its functions, or in accordance with a direction of a relevant officer of the Commission who certifies that it is necessary for the information to be divulged in the public interest, or to any prescribed authority or person. Under s 80(5), any authority or person to whom information is divulged under s 80(4) and any person or employee under the control of that authority or person is, in respect of that information, subject to the same rights, privileges, obligations and liabilities under s 80(2) and s 80(3) as if he or she were a person to whom s 80 applied and had acquired the information in the exercise of functions under the Commission Act. 7. On 26 October 2015, the Commission filed a notice of motion (the Summary Dismissal Motion) seeking summary dismissal of the Proceedings on the basis that the commencement of the Proceedings or the drawing of the Statement of Claim constituted an abuse of the court's process because it was facilitated by the contravention of s 80. In connection with the Dismissal Motion, the Commission gave to SG notice to produce (the First Notice to Produce) various documents designed to establish the extent to which he relied upon information furnished or provided by the Officer in making the allegations in the Statement of Claim. On 16 February 2016, SG's solicitor provided to the Commission's solicitor a schedule particularising privilege claims in respect of the First Notice to Produce. On 23 March 2016, the Commission served a second Notice to Produce on SG (the Second Notice to Produce). On 8 April 2016, SG filed a notice of motion (the Notice to Produce Motion) seeking orders that the First Notice to Produce and the Second Notice to Produce be set aside. 8. On 19 April 2016, the Commission filed a notice of motion (the Strike Out Motion) seeking that the Statement of Claim be struck out and claiming equitable relief by way of orders restraining the breach of confidence by the Officer in providing information to SG. SG subsequently amended the Notice to Produce Motion to include an order seeking to set aside the Commission's claim for equitable relief made in the Strike Out Motion, on the basis that the claims were for final relief, and that such claims should be made in separate proceedings and not by way of motion in the Proceedings. 9. All motions were heard together by a judge of the Common Law Division (the primary judge) in April 2016. After hearing argument, the primary judge reserved on all questions that were argued. On 17 November 2016, for reasons published on that day, the primary judge ordered that the Summary Dismissal Motion be dismissed. His Honour also gave reasons for his conclusions as to legal professional privilege in relation to certain documents that are the subject of the Notices to Produce. His Honour indicated that further directions would be given for the resolution of the claims to privilege. His Honour did not deal with the Strike Out Motion or the Notice to Produce Motion. 10. In his reasons of 17 November 2016, in dealing with the Summary Dismissal Motion, the primary judge observed that the abuse of process relied on by the Commission depended fundamentally on the breach of s 80 that the Commission asserted was involved in the commencement of the Proceedings. His Honour observed that there may or may not have been a breach of s 80 in the commencement of the Proceedings and that whether such a breach occurred and, if so, whether it was fundamental to the commencement of the Proceedings or their future progress depended upon the terms of any communication between SG and the Officer. 11. The primary judge also observed that SG's claim depended upon his capacity to prove the existence of a contract that obliged the Commission to make payments to SG in certain circumstances. His Honour said that, while he was sceptical that any arrangement between the Commission and SG was one that gave rise to legal relations, the issue was not whether it was likely that such an arrangement had been made but rather, being a motion for summary dismissal, whether the Proceedings were frivolous or vexatious, disclosed no reasonable cause of action or were an abuse of the court's process. 12. After concluding that the Proceedings were not frivolous or vexatious and that they disclosed a reasonable cause of action, the primary judge addressed what his Honour characterised as "the major submission" of the Commission, namely, that the Proceedings are an abuse of the process because they depend upon a breach of s 80. His Honour considered that the successful resolution of the Proceedings by SG did not depend upon a breach of s 80 but, rather, on the adducing of evidence as to the information and terms of any arrangement under which it was said SG performed work for the Commission. Further, his Honour did not consider that the Proceedings could be said to have been brought for a purpose of achieving objects ulterior to what was in the Statement of Claim and formed the basis of the alleged cause of action relied on by SG. In those circumstances, his Honour concluded that the Summary Dismissal Motion could not succeed "at this juncture". 13. The Commission complains that it did not contend that the Proceedings were frivolous or vexatious, disclosed no reasonable cause of action, or were brought with an ulterior motive. It says that the only basis for summary dismissal advanced by it was that the Proceedings constituted an abuse of the court's process. 14. The Commission seeks leave to appeal from the order dismissing the Summary Dismissal Motion. A direction has been given that the application for leave be heard concurrently with the appeal if leave be given. The grant of leave is opposed by SG. 15. The Commission's amended draft Notice of Appeal of 5 April 2017 relies on several grounds. The essence of the Commission's complaint is that the primary judge erred by: * determining, on a factual basis, whether the relief sought in the Summary Dismissal Motion should be granted in circumstances where the Commission was not yet pressing the relief claimed in the Summary Dismissal Motion but was first seeking to have SG answer the Notices to Produce; and * failing to hold that, in order to determine whether the Commission should have the relief claimed in the Summary Dismissal Motion, the Notices to Produce should first be answered by SG. The amended draft notice of appeal asserts that his Honour should have held that the Notices to Produce had the legitimate forensic purpose of obtaining evidence in support of the Summary Dismissal Motion and that his Honour should not have dismissed the Notice to Produce Motion. 1. Thus, the thrust of the Commission's complaint is that it was premature for the primary judge to dismiss the Summary Dismissal Motion without first determining the questions relating to the Notices to Produce. The Commission says that there is material to justify its contention that information was provided to SG by the Officer in contravention of s 80, being information from which SG's case is "drawn" or on which SG's claim is based. Nevertheless, it also seeks to rely on the material to be produced under the Notices to Produce in order to establish the extent to which the allegations made in the Statement of Claim are founded upon information provided by the Officer to SG in alleged contravention of s 80. 2. In essence, the Commission complains about the timing of the decisions made by the primary judge. It does not ask this Court to establish the appropriate substantive principle concerning abuse by reason of reliance on information obtained in contravention of s 80. Rather, it seeks no more than a determination that the primary judge ought not to have concluded, as his Honour appears to have done, that the Commission could not possibly succeed in having the Proceedings dismissed summarily on the ground of abuse of process simply by reason of reliance on information provided in contravention of s 80. 3. Senior counsel for SG, on the hearing of the application for leave, accepted that the reasoning of the primary judge is less than ideal in explaining why his Honour considered that it was appropriate to dismiss the Summary Dismissal Motion before dealing with the Notices to Produce. Senior counsel accepted that, if leave to appeal were refused and the Commission renewed its application for summary dismissal on the ground of abuse after all of the outstanding issues as to the Notices to Produce have been resolved by the primary judge, SG would not contend that such a renewed application for summary dismissal was vexatious notwithstanding the earlier dismissal of the Summary Dismissal Motion. 4. It may have been open to the Commission to file its application for leave for appeal, in order to preserve its rights when the Notices to Produce have been dealt with, but then seek to have the hearing of that application adjourned pending the decision by the primary judge of the other issues on which he is presently reserved. For example, if the Commission were to succeed entirely in its claims for equitable relief, there would be no need to pursue the Summary Dismissal Motion. The Commission's concern, however, is that it seeks to rely on the material that is the subject of the Notices to Produce in support of the Strike Out Motion as well as in support of the Summary Dismissal Motion. If the Notices to Produce were set aside, there may be little left for the Commission to do in pursuit of its present contention that SG should not be permitted to rely on the information provided by the Officer to the extent that it was provided in contravention of s 80. 5. In the circumstances, the application for leave to appeal should be dismissed. However, that dismissal is on the basis that it is without prejudice to the Commission's entitlement to re-agitate summary dismissal after the disposition of all questions concerning the Notices to Produce. The costs of the application for leave should be the parties' costs of the Motion of 8 April 2016, when it is ultimately determined. ********** 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: 29 May 2017