Supreme Court New South Wales Medium Neutral Citation: Strange v Turnbull [2018] NSWSC 898 Hearing dates: 12 June 2018 Decision date: 12 June 2018 Jurisdiction: Equity Before: Lindsay J Decision: Application to Set Aside Subpoena addressed to Corrective Services NSW dismissed Catchwords: CIVIL PROCEDURE – Subpoenas – Application to set aside – Limits on the disclosure of personal information – Privacy and Personal Information Act 1998 (NSW) – Exemptions – Whether a public sector agency may disclose otherwise private information when subpoenaed – Audio record of phone calls made while party in custody – Subpoena not set aside. Legislation Cited: Compensation to Relatives Act 1897 NSW Conveyancing Act 1919 NSW Privacy and Personal Information Protection Act 1998 NSW Cases Cited: - Texts Cited: - Category: Procedural and other rulings Parties: Plaintiff: Robert Strange First Defendant: Robeena June Turnbull and Grant Wesley Turnbull as Executors of the Estate of the late Ian Robert Turnbull Second Defendant: Robeena June Turnbull Representation: Counsel: Plaintiff: L Judd Defendants: T Alexis SC and D Mackay Solicitors: Plaintiff: Slater & Gordon Defendants: Cole & Butler File Number(s): 2016/00081312 JUDGMENT 1. On 29 July 2014, at a time when he was the owner of farming property near Moree in northern NSW, Ian Robert Turnbull ("Mr Turnbull") shot and killed Glen Turner ("Mr Turner"), a government officer to whom he took exception. 2. Mr Turnbull was subsequently convicted of murder and sentenced to imprisonment. He died in gaol in March 2017. His deceased estate is represented in the current proceedings by his executors (his wife and his son, Grant), jointly described for the purposes of the proceedings as "the first defendant". 3. The plaintiff in the current proceedings is a co-worker of Mr Turner who was present at the time of Mr Turner's murder and who, in other proceedings, sues Mr Turnbull's estate for damages for nervous shock. 4. In the current proceedings, the plaintiff invokes section 37A of the Conveyancing Act 1919 NSW to challenge the validity of transfers of property made by Mr Turnbull, in favour of his wife (in her own right, the second defendant), between January-October 2015 or thereabouts. 5. At that time, Mr Turnbull was held in custody by the NSW government agency known as "Corrective Services NSW". 6. At the request of the plaintiff, on 20 February 2018, a subpoena for production was issued by the Court, addressed to Corrective Services NSW, seeking (in paragraph 2 of the schedule to the subpoena) the following class of documents or things: "Audio and transcript of any recorded conversations between the former inmate known [as] Ian Robert Turnbull (DOB: 13/11/1934, who died in custody in Long Bay Correctional Complex on 27 March 2017) and Grant Wesley Turnbull and/or Robeena June Turnbull, including but not limited to recorded telephone calls which took place on 3 and 15 September 2014 and 9 and 14 October 2014, which became Exhibits AJ and AK in Supreme Court proceedings 223920 of 2014". 1. Two computer disks have been produced by Corrective Services NSW in answer to this paragraph of the subpoena. The first was produced under cover of a letter dated 15 March 2018 addressed to the Court by the Office of the General Counsel, Department of Justice. The second was produced under cover of a letter dated 15 May 2018 addressed to the Court by the same office. 2. No objection has been taken by or on behalf of Corrective Services NSW to production of the computer disks, but the second letter included a request in the following terms made by the author of the letter (a solicitor in the Office of the General Counsel): "… I respectfully request that access to the produced materials is restricted to the legal representatives of the relevant parties only, due to the sensitivity of the material and the involvement of third parties". 1. By paragraphs 5-7 of an amended notice of motion filed on 2 May 2018, the defendants sought, inter alia, orders to the following effect: 1. an order that paragraph 2 of the subpoena directed to Corrective Services NSW be set aside (paragraph 5 of the motion). 2. alternatively, an order that no access to any documents produced to the Court in response to paragraph 2 of the subpoena be granted (paragraph 6 of the motion). 3. alternatively, an order that the subpoena be set aside unless the scope of the recorded conversations sought is limited to the period from 29 July 2014 to 3 October 2015 (paragraph 7 of the motion). 1. The motion came on for hearing before me on 12 June 2018. Some parts of the motion (including the claims for relief referable to the Corrective Services subpoena) have been determined. Other parts remain to be determined. 2. Upon the hearing of the motion so far as regards the Corrective Services subpoena, the defendants pressed paragraphs 5 and 6 of the motion but, with the acquiescence of the plaintiff, announced that the parties had agreed that, if the relief sought in paragraphs 5 and 6 of the motion were to be refused, they were in agreement that the scope of the recorded conversations to which the plaintiff might have access should be limited to the period (identified in paragraph 7 of the motion) between 29 July 2014 and 3 October 2015. 3. The defendants advanced two objections to the disputed subpoena. Their primary objection was that production of the materials sought in the subpoena was precluded by provisions of the Privacy and Personal Information Protection Act 1998 NSW. The second ground was that the subpoena should be set aside as an abuse of process in the character of a "fishing expedition" on the part of the plaintiff. 4. After hearing evidence and argument, I made orders and a notation to the following effect: 1. ORDER that the claims for relief made in paragraphs 5 and 6 of the defendants' motion be dismissed. 2. ORDER that the Corrective Services subpoena is to be enforced on the basis that the scope of the materials sought by the subpoena is limited to the period from 29 July 2014 to 3 October 2015. 3. NOTE that the Court reserves an opportunity to deliver further supplementary reasons for its determination that the Privacy and Personal Information Protection Act 1998 is not an impediment to enforcement of the subpoena. 1. This notation was made, at the invitation of senior counsel for the defendant, upon his intimation that his clients were likely to seek to challenge my determination on appeal. 2. These reasons for judgment are published as the anticipated, supplementary reasons for my determination about the proper construction of the Privacy and Personal Information Act. 3. The ex tempore reasons for judgment given orally on the hearing of the motion, in relation to the Act were in the following terms (here lightly edited): "(1) In paragraphs 5, 6 and 7 of the amended notice of motion filed by the defendants on 2 May 2018, objection is taken to a subpoena (more particularly paragraph 2 of the subpoena) directed to Corrective Services NSW. (2) There are two bases upon which objection is taken to the subpoena. One relates to a broad allegation of fishing, but the one that requires particular attention is an objection said to arise from the combined operation of sections 18, 22, 23(5) and s 23(6) of the Privacy and Personal Information Protection Act 1998 NSW. (3) All the sections are predicated upon definitions that are found in sections 3 and 4. (4) It is agreed that Corrective Services NSW is a "public sector agency" within the meaning of section 3 of the Act, and that the subpoena is directed to what might be described as "personal information" as defined by section 4 of the Act. (5) The subpoena is directed towards obtaining information in the form of an audio or transcript of conversations between the first defendant as he was and his son and/or his wife, the second defendant. (6) Section 18 limits the ability of Corrective Services NSW to disclose personal information unless disclosures are authorised in terms of paragraphs (a), (b) and/or (c) of section 18(1). (7) Section 23, which needs to be read in the context of section 22, provides an exemption relating to law enforcement and related matters. (8) Section 23(5) provides that a public sector agency (relevantly, Corrective Services NSW) is not required to comply with section 18 if the disclosure of the information concerned, inter alia, is "authorised or required" by a subpoena. (9) Section 23(6) provides: "Nothing in subsection 5 requires a public sector agency to disclose personal information to another person or body if the agency is entitled to refuse to disclose the information in the absence of a subpoena, warrant or other lawful requirement". (10) There appears to be scope for uncertainty in construction of section 23 arising from multiple use of the expression "required", and then use of the expression "entitled to refuse" in subsections 5 and 6 read together. (11) In my opinion, sections 23(5)(c) and 23(6) together have the effect, not of absolving a public sector agency from compliance with a subpoena, but of drawing attention to the absence of any obligation on the part of a public sector agency to provide information beyond a subpoena. (12) The proper construction of section 23 is that a public sector agency is bound (to use a neutral expression) to respond to a subpoena by production of documents." 1. I do not accept, as the defendants would have it, that (on the proper construction of sections 18, 22 and 23) a public sector agency is bound, and able, to comply with a subpoena only if it is limited to law enforcement purposes or otherwise by reference to constraints found in section 18. I do not read section 23(6) as requiring section 23(5)(c) to be read down so as to limit the field of operation of a subpoena, a form of judicial process. 2. Nothing in the explanatory memoranda or the second reading speeches which led to the enactment of the Privacy and Personal Information Protection Act in 1998 or to amendment of section 23 in 2015 throws significant light upon the proper construction of the provisions (principally, sections 23(5)(c) and 23(6)) of the Act presently in contention. 3. In my opinion, unless the Privacy and Personal Information Protection Act operates, on its proper construction, as an impediment to enforcement of the subpoena, the plaintiff has a legitimate forensic purpose in seeking access to the subpoenaed material as likely to bear upon questions for determination by the Court, by reference to section 37A of the Conveyancing Act 1919, in the principal proceedings. The scope of the subpoena, as agreed between the parties, is directed to a period coincident with the time between Mr Turner's murder and the last of Mr Turnbull's challenged property transfers. The fact that Mr Turnbull was in custody, and likely to remain in custody for a substantial period, might reasonably be thought to provide a reason for property to be transferred out of his name into that of his wife. He might reasonably be expected to have discussed this, if not deeper motivations for property transfers, in recorded conversations with his wife and son. 4. Debate about the proper construction of the Privacy and Personal Information Protection Act focussed principally on sections 17, 18, 22 and 23(4) – (6A) which (for convenience, and with emphasis added) are here set out: "17. LIMITS ON USE OF PERSONAL INFORMATION A public sector agency that holds personal information must not use the information for a purpose other than that for which it was collected unless: (a) the individual to whom the information relates has consented to the use of the information for that other purpose, or (b) the other purpose for which the information is used is directly related to the purpose for which the information was collected, or (c) the use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual to whom the information relates or of another person. 18. LIMITS ON DISCLOSURE OF PERSONAL INFORMATION (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. (2) If personal information is disclosed in accordance with subsection (1) to a person or body that is a public sector agency, that agency must not use or disclose the information for a purpose other than the purpose for which the information was given to it. 22. OPERATION OF DIVISION Nothing in this Division authorises a public sector agency to do any thing that it is otherwise prohibited from doing. 23. EXEMPTIONS RELATING TO LAW ENFORCEMENT AND RELATED MATTERS (1) … (2) … (3) … (4) A public sector agency (whether or not a law enforcement agency) is not required to comply with section 17 if the use of the information concerned for a purpose other than the purpose for which it was collected is reasonably necessary for law enforcement purposes or for the protection of the public revenue. (5) A public sector agency (whether or not a law enforcement agency) is not required to comply with section 18 if the disclosure of the information concerned: (a) is made in connection with proceedings for an offence or for law enforcement purposes (including the exercising of functions under or in connection with the Confiscation of Proceeds of Crime Act 1989 or the Criminal Assets Recovery Act 1990 ), or (b) is to a law enforcement agency (or such other person or organisation as may be prescribed by the regulations) for the purposes of ascertaining the whereabouts of an individual who has been reported to a police officer as a missing person, or (c) is authorised or required by subpoena or by search warrant or other statutory instrument, or (d) is reasonably necessary: (i) for the protection of the public revenue, or (ii) in order to investigate an offence where there are reasonable grounds to believe that an offence may have been committed. (6) Nothing in subsection (5) requires a public sector agency to disclose personal information to another person or body if the agency is entitled to refuse to disclose the information in the absence of a subpoena, warrant or other lawful requirement. (6A) A public sector agency is not required to comply with the information protection principles [defined by sections 3 to include sections 17 and 18] with respect to the collection, use or disclosure of personal information if: (a) the agency is providing the information to another public sector agency or the agency is being provided with the information by another public sector agency, and (b) the collection, use or disclosure of the information is reasonably necessary for law enforcement purposes. (7) A public sector agency (whether or not a law enforcement agency) is not required to comply with section 19 if the disclosure of the information concerned is reasonably necessary for the purposes of law enforcement in circumstances where there are reasonable grounds to believe that an offence may have been, or may be, committed. (8) In this section: (a) a reference to law enforcement purposes includes a reference to law enforcement purposes of another State or a Territory or the Commonwealth, and (b) a reference to an offence includes a reference to an offence against a law of another State or a Territory or the Commonwealth, and (c) a reference to the protection of the public revenue includes a reference to the protection of the public revenue of another State or a Territory or the Commonwealth. 1. If my determination of the defendants' motion so far as concerns the Corrective Services subpoena survives challenge, it may be necessary for the Court to give directions designed to facilitate a grant of access to the subpoenaed material. A formal order for access has yet to be made. 2. It might also be necessary to give directions in the principal proceedings, and in related proceedings (styled "Mackenzie v Turnbull" and numbered 2017/00290612) in which Mr Turner's widow and children seek relief under section 37A of the Conveyancing Act, similar to that sought in the current proceedings by the plaintiff, in aid of separate proceedings under the Compensation to Relatives Act 1897 NSW. 3. Subject to any orders made in the meantime, the two sets of section 37A proceedings presently stand listed for final hearing before Rein J on 9 July 2018. ****************** 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 June 2018