AB v NSW Commissioner of Police

[2022] NSWSC 429

Supreme Court

New South Wales

Medium Neutral Citation:

AB v NSW Commissioner of Police [2022] NSWSC 429

Hearing dates:

5 October 2021

Date of orders:

12 April 2022

Decision date:

12 April 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1)   Notwithstanding Order 9 made by Lindsay J on 19 January 2021, the Plaintiff is permitted to disclose the material identified in paragraph 4(a) below to the persons or bodies identified in paragraph 4(b) below for the purpose of the Plaintiff seeking redress for the wrongs alleged by the Plaintiff against the Defendants:

(a)   The following material:

(i)   the pleadings in these proceedings;

(ii)   the Affidavit of AB affirmed 2 July 2021, including Confidential Exhibit AB-1;

(iii)   the six documents produced by the Australian Federal Police in response to the Plaintiff’s subpoena to produce, for which both the Plaintiff and the Defendants were granted access on 17 June 2021 (with the Court’s leave in respect of the Harman undertaking for this limited purpose); and

(iv)   the Affidavit of AFP Officer A sworn 14 July 2021, produced in response to the Plaintiff’s subpoena to attend to give evidence, and which exhibits the six documents referred to at Order 4(a)(iii) above (with the Court’s leave in respect of the Harman undertaking for this limited purpose).

(b)   The following persons:

(i)   the Attorney-General of NSW and his staff;

(ii)   the NSW Minister for Police and his staff; and

(iii)   the Law Enforcement Conduct Commission (“LECC”).

(c)   In the following manner:

(i)   The Plaintiff is to write to the Ministerial Office of the Attorney-General and request the Chief of Staff (or “acting” Chief of Staff, howsoever described) to nominate a person from that Office to whom the documents in Order 4 can be confidentially disclosed and a time and place for such disclosure to occur. A copy of these Orders and Lindsay J’s Orders of 19 January 2021 are to be provided with the material to be disclosed.

(ii)   The Plaintiff is to write to the Ministerial Office of the Police Minister and request the Chief of Staff (or “acting” Chief of Staff, howsoever described) to nominate a person from that Office to whom the documents in Order 4 can be confidentially disclosed and a time and place for such disclosure to occur. A copy of these Orders and Lindsay J’s Orders of 19 January 2021 are to be provided with the material to be disclosed.

(iii)   The Plaintiff is to write to the LECC informing the LECC that the Court has authorised the Plaintiff to disclose documents relating to the Plaintiff’s matter to the LECC and requesting the LECC to nominate a person from the LECC to whom the documents in Order 4 can be confidentially disclosed and a time and place for such disclosure to occur. A copy of these orders and Lindsay J’s Orders of 19 January 2021 are to be provided with the material to be disclosed.

(2)   The defendant is to pay the plaintiff’s costs of and incidental to the notice of motion.

(3)   The orders are stayed until 2pm on Thursday 14 April 2022.

(4)   The judgment is not to be published on Caselaw or otherwise, except for the purpose of the current litigation, before 2pm on Thursday 14 April 2022.

(5)   Direct the parties to make genuine efforts to reach agreement as to any changes to the form of the orders in (1) above and any redactions to the form of the judgment.

Catchwords:

CIVIL PROCEDURE – where plaintiff sues defendants for alleged breach of duties to informant and breach of promises and statutory duty – where plaintiff gathers information from Australia Federal Police and former police officers – implied undertakings – release from Harman undertaking – variation of non-publication order – disclosure of materials relating to police informants – “human sources” – relevant considerations – where non-publication order made to protect the safety of the plaintiff – where sources of material do not oppose release from undertaking – where disclosure to be made to Ministers of Crown – opposition to orders – puzzling – safe hands process

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 71

Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7(a)

Witness Protection Act 1995 (NSW)

Cases Cited:

Australian Trade Commission v McMahon (1997) 73 FCR 211

Complete Technology v Toshiba [1994] FCA 1314; (1994) 124 ALR 493

Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19

Glencore Coal Pty Ltd v Franks [2021] FCAFC 61

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Holpitt Pty Ltd v VarimuPty Ltd (1991) 29 FCR 576; [1991] FCA 354

Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283

Riddick v Thames Board Mills Ltd [1977] QB 881

Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720

Category:

Principal judgment

Parties:

AB (a pseudonym) (Plaintiff)
New South Wales Commissioner of Police (First Defendant)
State of New South Wales (Second Defendant)

Representation:

Counsel:

C O'Donnell (Plaintiff)
Mr R Coffey (First and Second Defendants)

Solicitors:

Piper Alderman (Plaintiff)
Makinson d’Apice Lawyers (First and Second Defendants)

File Number(s):

2021/00015984

Publication restriction:

Proceedings subject to orders made under the Court Suppression and Non-Publication Orders Act 2010.

The judgment is to be temporarily removed from NSW Caselaw until the conclusion of the proceedings.

Judgment

1. The plaintiff is suing the New South Wales Commissioner of Police and the State of New South Wales for damages or equitable compensation arising from, amongst other things, the allegedly tortious (and other) misconduct of various police officers in their dealings with him when he was providing co-operation and acting as a “human source” during an investigation of domestic and international organised crime. The lengthy history of the case and its factual matrix is complicated and set out in some detail in affidavits filed by the parties. In preparation for the hearing of his case, the plaintiff and his lawyers obtained documents and information that are the subject of a non-publication order made by Lindsay J on 19 January 2021. By Notice of Motion dated 18 August 2021 the plaintiff sought seven orders varying the orders made by Lindsay J. The defendants consented to orders 1, 2, 3, 5, 6 and 7 and these orders have been made. Orders 6 and 7 were dealt with by the Registrar on 1 September 2021. The defendants opposed order 4 and the matter turned up in the duty list on 5 October 2021. The present dispute is confined to the issue of whether that order or variation should be made.

2. The substantive proceedings are based on representations made by officers of the New South Wales Police Force (NSWPF) during the plaintiff’s cooperation with them as a human source. The information and involvement of the plaintiff contributed to the arrest and prosecution of several members of an organised crime network. The claim, commenced by way of summons on 9 September 2021, seeks monetary relief based on an alleged failure to honour the promises made to the plaintiff (including promises of financial reward, the provision of a new identity and assistance to relocate overseas) and compensation for a breach of duty of care and breach of statutory duty owed by the first defendant to the plaintiff and his family under the Witness Protection Act 1995 (NSW). The summons also seeks judicial review of an administrative decision made under that legislation.

3. Order 9 made by Lindsay J on 19 January 2021 was a non-publication order in the following terms:

“9.    ORDER, until further order of the Court, that:

a.   the plaintiff in these proceedings be referred as ‘AB’.

b.    disclosure by publication or otherwise of any report of the whole or any part of these proceedings, or of any information derived from these proceedings, tending to reveal the identity of or otherwise concerning the plaintiff, or any person who is related to or otherwise associated with the plaintiff, is prohibited.

c.   this order applies throughout Australia.”

4. Order 4 sought in the Notice of Motion is as follows:

“Notwithstanding Order 9 made by Lindsay J on 19 January 2021, the plaintiff is permitted to disclose the material identified in paragraph 4(a) below to the persons or bodies identified in paragraph 4(b) below for the purpose of the plaintiff seeking redress for the wrongs alleged by the plaintiff against the defendants:

The following material:

the pleadings in these proceedings;

the Affidavit of AB affirmed 2 July 2021, including Confidential Exhibit AB-1;

the six documents produced by the Australian Federal Police in response to the plaintiff’s subpoena to produce, for which both the plaintiff and the defendants were granted access on 17 June 2021 (with the Court’s leave in respect of the Harman undertaking for this limited purpose); and

the Affidavit of AFP Officer A sworn 14 July 2021, produced in response to the plaintiff’s subpoena to attend to give evidence, and which exhibits the six documents referred to at Order 4(a)(iii) above (with the Court’s leave in respect of the Harman undertaking for this limited purpose).

The following persons:

i. the Attorney-General of NSW and his staff;

ii. the NSW Minister for Police and his staff; and

iii. the Law Enforcement Conduct Commission.

5. While the notice of motion, on its terms, relates to the variation of the non-publication order, a related impact of the variation would be to provide a limited release from the implied “Harman undertaking” which otherwise prevents the plaintiff from using the information obtained in the course of the current litigation in unrelated proceedings. The parties made submissions in relation to the circumstances where such a release is appropriate and the policies behind such undertakings.

Timeline of the proceedings

6. A chronology of the litigation, helpfully prepared by those representing the defendants, is as follows:

• 17 September 2020: Letter of Demand sent to Minister for Police (“the Minister”).

• 21 September 2020: Letter of Acknowledgment sent by NSWPF Office of General Counsel.

• 23 October 2020: Email declining the Letter of Demand.

• 18 January 2021: Commencement of proceedings.

• 19 January 2021: Notice of Motion before Lindsay J.

• 25 January 2021: Amended statement of claim filed.

• 5 March 2021: Registrar’s directions: inter alia, plaintiff to serve all evidence by 30 April 2021.

• 29 June 2021: Registrar’s directions: inter alia, amended order that plaintiff to serve all evidence by 2 July 2021.

• 2 July 2021: Plaintiff serves evidence (1 x affidavit of the plaintiff).

• 1 September 2021: Registrar’s directions: inter alia, (i) amended order that defendant serve all evidence by 30 September 2021; and (ii) timetable for the hearing of the plaintiff’s Notice of Motion.

• 9 September 2021: Further Amended Statement of Claim filed.

• 21 September 2021: Plaintiff raises intention to serve expert evidence in respect of quantum.

• 24 September 2021: Defence to Further Amended Statement of Claim filed.

• 29 September 2021: Application made by defendants to vary Court timetable regarding service of evidence.

• 30 November 2021: Parties to engage in mediation before this date (as per orders of Registrar Jones).

7. Since this motion was heard, there have been the following developments:

• 07 December 2021: Registrar’s Directions:

• Position paper and evidence to be served by the plaintiff by 1 December 2021.

• Defendant Position paper by 8 December 2021.

• Parties to engage in Mediation on 8 December 2021. This did not occur.

• 17 December 2021: Registrars Directions: extension for production of further documents by defendant and evidence to be filed by plaintiff.

• 18 February 2022: Registrars Directions: Plaintiff to comply with notice of production by 11 March 2022.

• 23 March 2022: Registrars Directions: Parties have agreed to attend a mediation on 18 May 2022.

The purpose of order 4, the defendant’s opposition, and an overview of the trenchant positions taken by the parties

8. The plaintiff seeks order 4 to ensure that the non-publication regime does not prevent him from seeking alternative avenues of redress against the NSWPF through other independent bodies. Those bodies are the Attorney-General, the Minister and the Law Enforcement Conduct Commission (“LECC”). The plaintiff submits that those independent bodies can assist him in resolving his claims against the NSWPF and that, without order 4, the plaintiff would be unable to notify those bodies of his case or supply them with material to justify their intervention. [1] The plaintiff submits that he requires a new identity, compensation for past and future economic loss, and assistance to relocate before the gang members he betrayed are released from gaol. [2]

   1. Plaintiff’s Written Submissions (‘PWS’) at [3]-[4].

   2. PWS at [15].

9. The plaintiff submits there is a power imbalance between himself and the defendants, and that he ought to be able to pursue alternate avenues of redress from the independent bodies. The plaintiff asserts that the power imbalance arises because he is a natural person in receipt of Centrelink benefits who is challenging the defendants, who are government entities with “presumably … fairly limitless means to resist his claims.” [3] Given the history of the relationship between the parties, the plaintiff does not “trust that the defendants will treat him fairly and is eager to enlist the support of independent authorities to even the playing field as much as possible.”[4] Accordingly, the plaintiff contends that “the disclosure of the documents is clearly in the interests of justice” and may contribute to achieving justice in his unusual and unfortunate circumstances. [5]

   3. Tcpt, 5 October 2021, at p 20.

   4. PWS at [5].

   5. PWS at [23].

10. The defendants challenge that characterisation and dispute the desirability of plaintiff, who commenced the proceedings against the State and its police force, being released from confidentiality regimes when there is a perceived delay. [6] They submit that the plaintiff makes plain in their written submissions [7] that their intention is to “enable documents to be disclosed to persons not a party to the proceedings to cause some form of external pressure on the defendants and/or seek alternative redress.”[8] The disclosure of material to members of the executive branch of government, as a means of exerting political pressure and obtaining some external influence, is said to be an improper purpose calculated to interfere with the administration of justice. [9] The defendants submit, in essence, that the plaintiff’s application is an abuse of process and that the identified purpose does not amount to “special circumstances” which justifies a variation to the confidentiality regime. [10]

    6. Tcpt, 5 October 2021, at p 30.

    7. DWS at [7]-[8], citing generally PWS.

    8. DWS at [21].

    9. Tcpt, 5 October 2021, at p 30.

    10. DWS at [23].

11. The plaintiff does not deny that he is attempting to exert pressure on the defendants. He submits that he should not be restricted from seeking assistance beyond the litigation already commenced. The plaintiff submits:

“such a restraint would force the plaintiff to fight this case all the way to the end against stubborn, well-resourced defendants, and would deny him the opportunity to seek support from independent authorities who have power to influence the defendants in the conduct of these proceedings and in the upcoming mediation.”[11]

11. PWS at [8].

12. The defendants submit that given the substantive litigation is ongoing, the disclosure of the material to third parties is premature, because the defendant is still preparing its evidence and the plaintiff is yet to serve their expert evidence on quantum. [12] The defendants also submit that the substantive proceedings cannot be resolved more quickly with the involvement of third parties.

    12. DWS at [24].

13. An affidavit of the plaintiff’s solicitor, Timothy Coleman, was affirmed on 20 September 2021. It provides, at paragraph 28, the following context to the present interlocutory skirmish:

“It was the plaintiff (rather than the defendants) that applied for the non-publication orders made by Lindsay J on 19 January 2021 (being Order 9) to prohibit publication of the plaintiff’s identity and to anonymise his name for purposes of these proceedings (a copy of Lindsay J’s orders is at pages 25 to 26 of Exhibit TC-1). At the time Order 9 was obtained, the defendants were in fact rather hesitant about the order being made and did not consent to it, as demonstrated by the qualification in Order 8 of Lindsay J’s orders, which reads:

‘NOTE that, without admissions of any kind, the defendants do not object to the making of order 9 of these orders [i.e. the non-publication order], but they reserve generally any case they may have in opposition to the plaintiff’s claims’.”

14. The plaintiff submits that he was primarily concerned with protecting his identity at the time order 9 was drafted. The language used was broad and reflected the language of s 7(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW). [13] It was not contemplated at the time of drafting the order that there would be a future need to disclose information to other entities who could assist the plaintiff with his claim. As such, order 9 was not drafted in a more qualified way to allow such a disclosure. [14] The plaintiff submits that he is now seeking to qualify an order made at his request, for his benefit, and that preventing him from doing so would be an “illogical and unfair outcome”. [15]

    13. PWS at [11].

    14. PWS at [11].

    15. PWS at [12].

15. The plaintiff says that the order is primarily opposed because the NSWPF is concerned that senior police officers would be exposed for 15 years of alleged unlawful and incompetent conduct, rather than because of any concerns for the plaintiff’s safety. [16] The defendants, on the other hand, attribute the ongoing risks to the plaintiff’s safety to his refusal to participate in a field interview with the NSWPF Witness Protection Unit between September 2020 and September 2021. [17] The defendants submit that it is open to the plaintiff to write to the independent bodies and request inquiries into his claim without disclosing the subpoenaed documents. [18]

    16. PWS at [13].

    17. DWS at [14].

    18. DWS at [26].

Delay and obstruction of proceedings

16. The plaintiff submits that the defendants have a tendency to delay and obstruct proceedings, [19] and that “this behaviour is calculated to wear him down, in the hope that he will be unable to prosecute the case to judgment.”[20] The plaintiff submits that by exploiting his limited finances, the defendants can enjoy a strategic advantage from delay and therefore, “the Defendants will not be motivated to negotiate a fair settlement at the mediation, unless some external pressure can be brought to bear on them, such as what could be brought by the Attorney-General, the Minister and the LECC.”[21]

    19. Affidavit of Timothy Coleman, 20 September 2021, at [9]-[23].

    20. PWS at [6].

    21. PWS at [7].

17. The defendants reject the accusation of deliberate or excessive delay and submit that the plaintiff’s case has changed from the first letter of demand through to various versions of his statement of his claim in the amended pleadings. [22] They also note that the scope of the pleading against the Commissioner and the State was expanded during the COVID-19 lockdown in NSW in 2021 and, as such, there have been circumstances outside of the defendants’ control which have caused delay. [23] The defendants assert that they are entitled to deny the allegations, resist the claim and that their actions have abided by the Model Litigant Policy. [24] I will make no comment as to that last matter in this judgment. The defendants concede that an application was made on 29 September 2021 to vary the Court’s timetable in respect of the defendants’ service of evidence. However, this was attributed to the COVID-19 restrictions and to respond to the plaintiff’s sudden indication that he intended to serve expert evidence in respect of quantum, which was raised for the first time in written submissions dated 21 September 2021. [25]

    22. Tcpt, 5 October 2021, at p 26.

    23. Tcpt, 5 October 2021, at p 26.

    24. DWS at [10]-[11].

    25. DWS at [12].

Sensitive material

18. The defendants submit that parts of the information sought to be disclosed is of a sensitive nature and assert that the Attorney-General, the Minister and the LECC do not ordinarily receive this kind of information. Therefore, the defendants maintain that the relevant agencies have no system in place for the receipt of this kind of information. [26]

    26. Tcpt, 5 October 2021, at p 8.

19. The plaintiff submits that the three entities, described in submissions as “highly respectable … public authorities”, can be expected to deal with sensitive and confidential material in an appropriate way. [27] To mitigate any security concerns, the plaintiff has proposed a “safe hands” process, whereby a particular nominee for each entity would be specified and the process of disclosure would be channelled to ensure, as far as possible, the security and confidentiality of the material. [28]

    27. Tcpt, 5 October 2021, at p 15.

    28. Paragraph (c) and subparagraphs (i), (ii), (iii) of the draft Short Minutes of Order, provided by the plaintiff to my chambers on 5 October 2021, set out the proposed safe-hands process.

20. The defendants argue that the proposed “safe hands” process is inadequate as there are no proposed orders as to how the material is to be stored following its disclosure and is susceptible to inadvertent disclosure as a result of a of cyber-attack or some form of inadvertent physical disclosure. The defendant’s make the surprising assertion that this risk, if it is ultimately found that the defendants owe a duty of care to the plaintiff, will strengthen the claim against them. [29]

    29. Tcpt, 5 October 2021, at p 29.

21. The plaintiff submits in reply that he is prepared to accept what little risk there is from the limited disclosure he seeks and that he would consider making redactions to any of his personal identification information. [30] Mr Coleman says in an affidavit dated 20 September 2021 that there is no reason to believe that disclosure of the documents to the persons or entities in order 4 will greatly increase the security risk to the plaintiff. [31]

    30. PWS at [14].

    31. Affidavit of Timothy Coleman, 20 September 2021, at [31].

Proposed entities not equipped to provide redress

22. The plaintiff claims that the LECC would be able to make recommendations to the Commissioner in relation to his complaint, up to and including compensation. [32] The Minister and the Attorney-General would similarly be able to make recommendations and investigations through a less formal, departmental process and may obviate the need to continue expensive litigation. [33] The plaintiff has suggested that an ex gratia payment could also be recommended in lieu of compensation. [34] In relation to public interest considerations, the plaintiff submits that disclosure will not compromise the integrity of the Witness Protection Unit, as there is no specific information that could be revealed regarding its past or present methodologies. [35]

    32. Tcpt, 5 October 2021, at p 19.

    33. Tcpt, 5 October 2021, at p 20.

    34. Tcpt, 5 October 2021, at p 20.

    35. PWS at [26].

23. The defendant submits that conveying the material to the Minister and the Attorney-General is inappropriate, as the case put by the plaintiff’s counsel assumes that the content provided within the statements is accurate and overlooks the NSWPF’s entitlement to challenge the evidence. [36] The defendant submits that conveying the material to the LECC is similarly inappropriate as the plaintiff would, in essence, be seeking an assessment to be made on behalf of the Commissioner about his participation in the program and the relief or remedies under the Witness Protection Act, which might be sought by someone “making a desktop assessment … of his affidavit”. [37] The plaintiff would then be dictating what information is provided to the Witness Protection Unit and therefore requiring the witness protection officer, or other delegate, to interpret any risks without the ability to make their own enquiries. [38]

Harman undertakings and release: applicable principles

36. Tcpt, 5 October 2021, at p 30.

37. Tcpt, 5 October 2021, at p 31.

38. Tcpt, 5 October 2021, at p 31.

24. If order 4 is to be made, and the plaintiff is permitted to disclose certain material obtained in the course of this litigation to the third parties identified in the notice of motion, the plaintiff requires a limited release from the Harman undertaking to which he impliedly agreed when he obtained the material (including by subpoena). The material includes:

1. An affidavit of AFP Officer A dated 14 July 2021; and

2. Exhibit PH-1 to AFP Officer A’s affidavit, which comprises six documents produced by the Australian Federal Police in response to a subpoena issued by the plaintiff.

25. In general terms, the affidavit of AFP Officer A describes correspondence between Australian law enforcement agencies, and between Australian and United States law enforcement agencies, regarding the plaintiff’s history as a human source and arrangements for his relocation in the United States. Exhibit PH-1 to that affidavit includes copies of that correspondence.

26. What has become known as a Harman undertaking acquired its label from the case of Harman v Secretary of State for the Home Department. [39] Lord Diplock said at 300:

“The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse.”[40]

“This is why an order for production of documents to a solicitor on behalf of a party to civil litigation is made upon the implied undertaking given by the solicitor personally to the court (of which he is an officer) that he himself will not use or allow the documents or copies of them to be used for any collateral or ulterior purpose of his own, his client or anyone else; and any breach of that implied undertaking is a contempt of court by the solicitor himself. Save as respects the gravity of the contempt no distinction is to be drawn between those documents which have and those which have not been admitted in evidence; to make use for some collateral or ulterior purpose of the special advantage obtained by having possession of copies of any of an adverse party’s documents obtained upon discovery is, in my view, a contempt of court.”[41]

“Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant's affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done.”[42]

39. [1983] 1 AC 280.

40. [1983] 1 AC 280 at 300.

41. [1983] 1 AC 280 at 304-305.

42. [1983] 1 AC 280 at 308.

27. The High Court discussed the nature and content of such undertakings in Esso Australia Resources Ltd v Plowman. [43] Brennan J, who dissented in the result on a narrow issue relating to confidentiality in relation to arbitration hearings, said at 36:

“The underlying principle … is that a party who obtains the production of documents or the disclosure of information for a particular purpose cannot use the documents or information for a “collateral or ulterior purpose”. [44]

43. (1995) 183 CLR 10; [1995] HCA 19.

44. See also Mason CJ at 32-33 agreeing with the statement of law provided by Brennan J on this point. Dawson J, at 39, and McHugh J at 48, agreed with the reasons of Mason CJ.

28. The purpose of the undertaking was described in Hearne v Street at [107]:

“…merely a formula through which the law ensures that there is not placed upon litigants, who in giving discovery are suffering ‘a very serious invasion of the privacy and confidentiality of [their] affairs’, any burden which is ‘harsher or more oppressive … than is strictly required for the purpose of securing that justice is done’.”[45]

(footnotes omitted)

45. (2008) 235 CLR 125; [2008] HCA 36.

29. In Riddick v Thames Board Mills Ltd,[46] Lord Diplock observed at 896:

“The Courts should, therefore, not allow the other party – or anyone else – to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.”

46. [1977] QB 881.

30. It has been held that the Court’s discretion to dispense with the undertaking is enlivened when there are “special circumstances” justifying such a course. In Springfield Nominees Pty Ltd v Bridgelands Ltd, [47] at [26], Wilcox J held that such circumstances exist where:

“…there is a special feature of the case which affords a reason for modifying or releasing the undertaking and [the feature] is not usually present. The matter then becomes one of the proper exercise of the Court’s discretion, many factors being relevant.”

47. (1992) 38 FCR 217.

31. There is no prescriptive or exhaustive list of considerations relevant to the exercise of the discretion. However, in Springfield Nominees Pty Ltd v Bridgelands Ltd, Wilcox J provided a list of factors which may be relevant at 255:

“…the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.”

32. In Liberty Funding Pty Ltd v Phoenix Capital Ltd,[48] at [32], the Full Federal Court described that list of factors as a “helpful guide” which “may” be relevant. At [31], the Court held that:

“…good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes.”

48. [2005] FCAFC 3; (2005) 218 ALR 283.

33. However, in Esso v Plowman Brennan J suggested that a cautious approach should be taken in applying the “special feature” principle expressed by Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Ltd, with Brennan J stating at 37:

“It is unnecessary to consider whether the dispensing power should be so broadly defined. It is relevant to note only that the obligation enforceable as an undertaking to the court in the case of a curial order is not unqualified.”[49]

49. Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; [1995] HCA 19 at 37. The majority judgments did not refer to the approach suggested by Wilcox J.

34. Nevertheless, Brennan J acknowledged the “special circumstances” formulation has been applied in various decisions of the Federal Court. [50]

    50. See Glencore Coal Pty Ltd v Franks [2021] FCAFC 61; Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; Complete Technology v Toshiba [1994] FCA 1314; (1994) 124 ALR 493, at 501-502; Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 at 578-579.

35. In Glencore Coal Pty Ltd v Franks, the Full Federal Court set out the “well established”[51] principles regarding releasing persons from Harman undertakings. The components of those principles relevant to AB’s application to be released from the implies undertaking are as follows:[52]

    51. Glencore Coal Pty Ltd v Franks [2021] FCAFC 61 at [17].

    52. Glencore Coal Pty Ltd v Franks [2021] FCAFC 61 at [18]-[29] (citations omitted).

1. The Harman undertaking is implied whenever documents are produced under subpoena. Those documents must not be used for any collateral purpose beyond the immediate proceedings unless the Court exercises its discretion to release a party from that undertaking.

2. The “special circumstances” discretion is broad and an examination of all the circumstances of the case is required before the discretion is exercised.

3. It is sufficient that the special “circumstance” or “feature” is one that is not usually present. It need not be exceptional or extraordinary.

4. The weight to be afforded to the various factors set out in Springfield Nominees Pty Ltd v Bridgelands Ltd will be informed by the considerations relevant in a particular case.

5. Judicial decisions indicate that the balancing process required prior to the exercise of the discretion frequently involves considerations beyond the interests of the parties to the litigation. A Harman undertaking may be dispensed with where it is justified in the public interest, however there may be competing public interests (for example, the public interest in the enforcement of criminal laws and the public interest in the maintenance of confidentiality in legal proceedings). Similarly, if the application to be released from the Harman undertaking has been brought for some personal advantage or an improper purpose, and not to further the public interest, that may be a relevant consideration.

Application of these principles to the present case.

36. I accept the plaintiff’s submission that the relevant documents were brought into existence largely to protect his interests. It is also relevant, and militates in favour of the orders sought by the plaintiff, that the non-publication order was sought by him and calculated to protect his safety and interests.

37. It is a matter of significance that the AFP and AFP Officer A himself, whose documents they are, have no objection to the release of the documents. [53] As the primary purpose of the implied undertaking is to protect the privacy or confidentiality of the person who produces the document, this is a significant factor in favour of releasing the plaintiff from the undertaking. I accept the plaintiff’s submission that there is no identifiable prejudice to either AFP Officer A or the AFP in the limited release of the plaintiff from his undertaking.

    53. Affidavit of Timothy Coleman, 18 August 2021, at [24].

38. I sought an assurance that the retired police officer, NSWPF Officer B, who is one of the sources of the information, has no objection and will not be prejudiced by the release the information to the limited bodies or people to which or to whom the plaintiff seeks to release the material. [54] It seems unlikely that NSWPF Officer B would raise any objection given that his document is addressed “to whom it may concern.” No prejudice to NSWPF Officer B was identified.

    54. Tcpt, 5 October 2021, at pp 22-23, 27-28, 32.

39. I do not accept that the three bodies to whom the plaintiff seeks to release the documents are not capable of recognising the confidential nature of the information contained and ensure that confidentiality is protected. The amended orders sought by the plaintiff included what was described as “safe hands” process. I found the defendant’s resistance to the proposed process unconvincing, if not obstructive.

40. In Australian Trade Commission v McMahon (1997) 73 FCR 211, it was held that because the recipient of the impugned evidence was charged with investigating possible criminal conduct, and the evidence suggested criminal conduct, the use of that evidence for that purpose was considered a legitimate public interest. That is not the situation here, but at least with the respect to the LECC, the circumstances are somewhat analogous. Further, at least some of the accusations made by the plaintiff are matters that the LECC may find it appropriate to investigate. Some of those matters are, by now, quite historic and there is no public interest in delaying any such investigation. The public interest points in the other direction.

41. I can see no detriment to the public interest in the Attorney General and Police Minister being aware of the circumstances of this litigation and the information the plaintiff has obtained. I understand from the submissions that each has already been made aware of the existence of the proceedings. Whether either Minister decides to act in any way on the information will be a matter for the executive government and for the individual minister. I do not accept that disclosure to members of the executive Government is calculated to, or will, have the capacity to interfere with the curial process, or create any prejudice to the defendant and its methods of dealing with informants. Again, I can see no prejudice to the public interest in the disclosure proposed.

42. The defendants’ submission that the limited release from the undertaking may increase the risk to the plaintiff, and somehow increase the liability and exposure of the defendants in this litigation, bordered on absurd and seemed to be withdrawn in the course of the argument. [55]

    55. Tcpt, 5 October 2021, at pp 28-29.

43. Taking all of these matters into account, I accept the plaintiff’s submission that the circumstances are sufficiently special or unusual to justify an order releasing them from the Harman undertaking to the limited extent identified in the orders he seeks. To be clear, that release is restricted to allow the plaintiff to disclose the identified information to the Law Enforcement Conduct Commission, the Minister for Police and the Attorney General of New South Wales.

44. To give effect to that conclusion it is necessary to amend the existing non-publication orders. It is fundamental that such orders should only restrict publication to the extent necessary in the public interest and in the kinds of circumstances identified in the Courts Suppression and Non-publication Orders Act. Clearly, the orders were made (at the plaintiff’s request) on the basis that there was such a public interest to protect the plaintiff’s identify, and in turn his safety, and to protect certain police methodology. The limited exceptions to the order proposed by the plaintiff do no violence to those matters.

45. Accordingly, I propose to make the variations to the orders sought by the plaintiff. The variations will include the so called “safe hands” process proposed in the amended orders. I make those additional orders in deference to the care taken by those representing the plaintiff to attempt to accommodate the concerns raised by the defendants. I do not make them because I find those concerns persuasive. On the contrary, I find the position taken by the defendant on a number of the issues to be puzzling.

46. I will leave to the parties to agree – or not – upon redactions to the documents. This was another matter raised in argument, and agreed to in principle by the plaintiff, as a result of the concerns raised by the Commissioner. I would not, on the information I have seen and given the identity of those to whom disclosure will be made, make any orders relating to the redaction of the material. One exception to that proposition may be any material that might identify the plaintiff’s wife. What I will not permit is an attempt by the defendant to bring the matter back to this Court to have an argument over redaction of material to be provided to the Police Minister, the LECC, or the Attorney General.

47. I will stay the orders until 2pm on Thursday 14 April 2022 to allow the parties to reach agreement or make brief written submissions as to the precise form of the orders and any redactions to the judgment to be published on Caselaw. I direct the parties to make genuine efforts to agree on any such matters.

ORDERS

48. I make the following orders:

1. Notwithstanding order 9 made by Lindsay J on 19 January 2021, the Plaintiff is permitted to disclose the material identified in paragraph 4(a) below to the persons or bodies identified in paragraph 4(b) below for the purpose of the Plaintiff seeking redress for the wrongs alleged by the Plaintiff against the Defendants:

1. The following material:

1. the pleadings in these proceedings;

2. the Affidavit of AB affirmed 2 July 2021, including Confidential Exhibit AB-1;

3. the six documents produced by the Australian Federal Police in response to the Plaintiff’s subpoena to produce, for which both the Plaintiff and the Defendants were granted access on 17 June 2021 (with the Court’s leave in respect of the Harman undertaking for this limited purpose); and

4. the Affidavit of AFP Officer A sworn 14 July 2021, produced in response to the Plaintiff’s subpoena to attend to give evidence, and which exhibits the six documents referred to at order 4(a)(iii) above (with the Court’s leave in respect of the Harman undertaking for this limited purpose).

2. The following persons:

1. the Attorney-General of NSW and his staff;

2. the NSW Minister for Police and his staff; and

3. the Law Enforcement Conduct Commission (“LECC”).

3. In the following manner:

1. The Plaintiff is to write to the Ministerial Office of the Attorney-General and request the Chief of Staff (or “acting” Chief of Staff, howsoever described) to nominate a person from that Office to whom the documents in order 4 can be confidentially disclosed and a time and place for such disclosure to occur. A copy of these orders and Lindsay J’s orders of 19 January 2021 are to be provided with the material to be disclosed.

2. The Plaintiff is to write to the Ministerial Office of the Police Minister and request the Chief of Staff (or “acting” Chief of Staff, howsoever described) to nominate a person from that Office to whom the documents in order 4 can be confidentially disclosed and a time and place for such disclosure to occur. A copy of these orders and Lindsay J’s orders of 19 January 2021 are to be provided with the material to be disclosed.

3. The Plaintiff is to write to the LECC informing the LECC that the Court has authorised the Plaintiff to disclose documents relating to the Plaintiff’s matter to the LECC and requesting the LECC to nominate a person from the LECC to whom the documents in order 4 can be confidentially disclosed and a time and place for such disclosure to occur. A copy of these orders and Lindsay J’s orders of 19 January 2021 are to be provided with the material to be disclosed.

2. The defendant is to pay the plaintiff’s costs of and incidental to the notice of motion.

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Endnotes

Decision last updated: 17 August 2023