CITATION: A Pty Ltd v Z [2007] NSWSC 999 HEARING DATE(S): 7, 24 August 2007
JUDGMENT DATE :
6 September 2007JURISDICTION: Equity Division JUDGMENT OF: Brereton J DECISION: Exemption from prohibition on disclosure of telephone intercept information that has previously been disclosed in an exempt proceeding is limited to the information so disclosed and does not extend to associated information. Production of material subject to statutory privilege cannot be required. Orders made limiting obligation of recipient of subpoena. CATCHWORDS: EVIDENCE – Subpoenas – Confidentiality & Disclosure – restricted material – information obtained under Telecommunications (Interception & Access) Act – where transcripts have already been given in evidence in an exempt proceeding – whether audio tapes may now be given – Privilege – statutory privilege – information obtained or produced pursuant to New South Wales Crime Commission Act - COSTS – discretionary considerations – where successful objection only raised on second day of hearing – costs exacerbated by both parties – distinction between costs of compliance with, and costs of unsuccessful application to set aside, subpoena LEGISLATION CITED: (CTH) Telecommunications (Interception & Access) Act 1979 ss 5B, 6E, 63, 74, 75A
(NSW) New South Wales Crime Commission Act 1985 ss 27A, 29
(NSW) Uniform Civil Procedure Rules 2005 rr 33.4, 33.11CASES CITED: A v Z [2007] NSWSC 899
ACP Magazines Pty Ltd v Motion [2000] NSWSC 1169, [34]; Re Bauhaus Pyrmont
Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497
Deposit & Investment Co Limited (Receivers Appointed) v Peat Marwick Mitchell & Co (1996) 39 NSWLR 267
J Aron Corporation v Newmont Yandal Operations [2004] NSWSC 996
Kumagai Australia Finance v Avarton Ltd (NSWSC, Bryson J, 7 June 1991, unreported)
Mancorp Pty Ltd v Baulderstone Pty Ltd (SASC, Debelle J, 5 March 1993, unreported)
Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77
R v Barbaro (1992) 108 ACTR 1
Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 879PARTIES: "A" Pty Ltd (plaintiff)
Mr "Z" (first defendant)
Mrs "Z" (second defendant)
NSW Commissioner for Police (applicant)
FILE NUMBER(S): SC 3217/06 COUNSEL: Ms J Ghabrial (plaintiff)
Mr M Kelly (solicitor) (defendants)
Ms England (NSW Commissioner for Police)SOLICITORS: Xenos Lawyers (plaintiff)
Kemp Strang (defendants)
Crown Solicitor (NSW Commissioner for Police)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BRERETON J
Thursday, 6 September 2007
3217/06 A Pty Ltd v Z
JUDGMENT
1 HIS HONOUR: On 4 July 2007, I rejected the contention of the applicant Commissioner for Police that there was no legitimate forensic purpose for the issue of a subpoena dated 9 March 2007 by the plaintiff A Pty Ltd calling for the documents in paragraphs 1-4 inclusive, 6 and 7 of the schedule to that subpoena, on the footing that those paragraphs were read down in accordance with a letter of 3 April 2007 (Exhibit RX03) – but subject to the objection that provision of those documents to the court and their use in evidence would be prohibited by (CTH) Telecommunications…
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- AGLC
- A Pty Ltd v Z [2007] NSWSC 999
- Case
- [2007] NSWSC 999
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the admissibility of the audio tapes and the extent to which statutory privilege could protect information obtained or produced under the New South Wales Crime Commission Act. The court had to determine whether the privilege applied to the audio tapes and if the tapes could be excluded from evidence. The case also addressed the costs associated with the subpoenas, particularly focusing on the discretionary considerations when costs were exacerbated by both parties. The court examined whether the costs should be attributed to compliance with the subpoena or to the unsuccessful application to set aside the subpoena.
The court ruled that the audio tapes could not be introduced into evidence as they had already been disclosed through transcripts in the exempt proceeding. The court further found that the statutory privilege under the New South Wales Crime Commission Act applied, and the information could not be disclosed. Regarding costs, the court held that the successful objection raised on the second day of the hearing, combined with the exacerbated costs by both parties, warranted a specific allocation of costs. The costs were attributed to compliance with the subpoena rather than the unsuccessful application to set aside the subpoena. This decision underscores the importance of timely objections and the consequences of exacerbating costs in legal proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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