Fagan - v - State of New South Wales

[2002] NSWSC 1079

CITATION:	FAGAN - v - STATE OF NEW SOUTH WALES [2002] NSWSC 1079 revised - 13/11/2002
CURRENT JURISDICTION:	Supreme Court
FILE NUMBER(S):	SC 11875/02
HEARING DATE(S):	17,31 October 2002
JUDGMENT DATE:	15 November 2002
PARTIES :	Geoffrey FAGAN( Plaintiff) State of New South Wales (Defendant)
JUDGMENT OF:	Cooper AJ

LOWER COURT
JURISDICTION :

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER :

COUNSEL :	Mr. M. Cahill (Plaintiff) Mr. C. F. Hodgson (Defendant)
SOLICITORS:	Messrs Oates & Smith (Plaintiff) I.V.Knight, Crown Solicitor (Defendant)
CATCHWORDS:	Obstruction of justice. - Lawful Directions to Police Offiers
LEGISLATION CITED:	Section 75 of the Supreme Court Act Section 201 of the Police Act
CASES CITED:	AG (NT) -v- Maurice 161 CLR 475 J-Corp Pty Limited -v- BLF 110 ALR 510
DECISION:	1. The orders sought in paragraph 2 of the amended Summons dated and filed 9 July 2002 are refused and the summons is dismissed to that extent.; 2. The defendant is ordered to pay the plaintiff's costs of the day of 17 October 2002, and, subject to this, each party is to bear and pay its own costs.

- 15 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

COOPER AJ

07395/99

Geoffrey FAGAN
( Plaintiff)

-v-

STATE OF NEW SOUTH WALES
(Defendant)

JUDGMENT

The Nature of the Application

1 By Amended Summons dated 9 July 2002 the plaintiff sought two primary orders. The first was that the action be transferred from the District Court to this Court. This order was made some time ago.

2 The order which remains for my determination is a direction that the plaintiff be given access to witnesses that are employees of the defendant and that the defendant be directed not to interfere with the plaintiff’s witnesses.

Background to the Application

3 To understand this application it is necessary to examine the background. The plaintiff was a Police Officer who reported acts of corruption and other forms of impropriety committed by other members of the Police Service. He alleges that the defendant (which is the responsible entity to be sued in respects of defaults of the Police Service) failed in its duty to protect him from acts of reprisal in respect of his reports and that he suffered consequential damage.

4 On 30 May 2002 Ms Smith, the Solicitor for the plaintiff, sent letters in identical terms to Messrs Anderson, Graham and Kramer and who are serving Police Officers who, on her instructions, were in a position to give relevant evidence in the matter. In those letters she informed the recipients that the action was then listed for hearing in the District Court on 23 July and asked each of them to attend a conference with Counsel for the plaintiff on 20 June. On about 1 June she was told by Mr Anderson that he had had a conversation with his manager, Superintendent Brian Reith, who said to him words to the effect of “you can go to a conference but you must provide me with a report as to the exact nature of the evidence that you intend to give at the conference and report back to me after the meeting as to the nature and extent of the matters discussed”.

5 On 5 June she received a fax from Sergeant Graham in the following terms:

“My manager has given her approval to attend the conference with Mr. Cahill on 20.6.02 dependent on my ascertaining what information is likely to be discussed, and providing her with that information. I will not be permitted to take any file notes or documents re this matter to the conference. At the completion of the conference I am to submit a report to the Crown Solicitor’s office for their information. Please reply to this fax.”

6 On 18 June Ms Smith spoke to the solicitor for the defendant advising that a number of witnesses had advised her by telephone and in writing that they had been given permission to attend a conference with the plaintiff’s counsel but restrictions had been placed on that attendance. The restrictions included that they were to provide a report to their Commander as to what was likely to be discussed at the conference, no notes or documents were to be taken to the conference and at the completion of the conference a report was submitted to the defendant.

7 By letter dated 19 June the plaintiff’s solicitor wrote to the defendant’s solicitor as follows:

“We refer to the above matter and our telephone conversation of today’s date and confirm that we have received certain advice from another one of our potential witnesses that his Manager, Superintendent Brian Reith, has directed him to do the following -
1. Provide him with a report as to the exact nature of the evidence he will give at conference and myself
2. At the completion of the conference he is to submit a report to the Superintendent as to the nature and extent of the evidence he will give at the hearing.”
We assert that this is a gross violation of legal professional privilege and in fact amounts to improper behaviour by those purporting to act for the defendant as it is exerting pressure on potential witnesses and could well amount to contempt of court.
We have a conference on Thursday of this week with all our witnesses who have been given the same or similar directions and we request your urgent attention to this matter. In the event that it cannot be resolved immediately to enable the plaintiff’s legal representatives to have free access to the witnesses who are employed by the NSW Police Service (State of New South Wales) we will list the matter before the Court for directions”

8 In a further letter dated 4 July the plaintiff’s solicitors wrote:-

“Finally our letter to you of 18 and 19 June 2002 requesting a resolution by you of the defendant not allowing the plaintiff free access to his witnesses, unfortunately we have not had a response from you. We have sought relief in the Notice of Motion requesting directions in the Supreme Court in respect of same.
Should the question of costs arise in this matter we intend to use this letter in any application in respect of costs.”

9 On about 11 July 2002 Ms Smith was instructed by the plaintiff that he had been informed that Senior Constable Anderson, and Sergeant Wilkinson had been advised by their superior officers as to the limitations placed on them in providing information and giving evidence of the hearing of the case.

Proceedings on 17 October 2002

10 The present application came on for hearing before me on 17 October 2002 when Counsel for the defendant sought an adjournment because his instructing solicitors had not yet received any instructions as to whether superior officers had given directions to potential witnesses who are serving police officers, let alone what directions may have been given. In view of the fact that the defendant’s solicitors had known of the concerns of the plaintiff’s solicitors on this issue as far back as mid June, to call the defendant’s conduct unsatisfactory would be an understatement. For almost two months the defendant’s solicitors had had the affidavit of Ms Smith sworn on 16 August which nominated the superior officers alleged to have given the directions. They were set out in paragraphs 2 and 5.

11 I decided to proceed with the hearing on that day as far as possible. The affidavit of Ms Smith was read and she was cross-examined.

12 Senior Constable Mark Wilkinson gave evidence. His understanding was that the directions to him and to Detective Anderson were that each could attend an interview with the plaintiff’s legal representatives and each had to give a copy of any statement he had made to them to his superiors and they were also to provide a report in relation to that interview saying what had transpired.

13 I then stood the matter over part heard to 31 October 2002 and directed the defendant to have evidence from the named superior officers in either affidavit or oral form available to the Court on that day.

14 At this stage it convenient to refer to Section 201 of the Police Act which states:-

“A police officer who neglects or refuses to obey any lawful order or to carry out any lawful duty as a police officer is guilty of an offence. Maximum penalty; 20 penalty units.”

15 The effect of the directions said to have been given to the potential witnesses had in fact the force of law and there was a sanction in respect of any failure to comply with it. Of course the obligation is to obey only a lawful order. An order which itself requires the doing of something which is not lawful does not mandate obedience. But, from a practical viewpoint, no police officer would want to be involved in a dispute with his or her superior as to the lawfulness of any order. From this viewpoint any order unless manifestly unlawful would be obeyed.

16 It is now convenient to consider the terms of directions given to potential witnesses as set out in affidavits filed in Court on 31 October 2002.

What Directions were given?

17 The directions of Chief Inspector Lapham given to Sergent Graham according to her affidavit of 30 October are as follows:-

“Attendance at this conference is your decision. If you do decide to go:-
1. You can attend in work time
2. I require a full briefing note from you detailing what information is likely to be discussed.
3. At the completion of such conference I require a comprehensive briefing note on the matters that were discussed.
These reports will be forwarded through CACS to the Crown Solicitors Office for their information.
4. You are not to take any of the notes or documents re this matter to the conference. Legal process must be in place before these will be provided.”

18 The directions given to Senior Constable Mark Wilkinson are set out in the affidavit of Chief Inspector Mark Wright of 22 October 2002.

19 In paragraph 5 he says:-

“In my view the Senior Constable was either obliged to assist in the matter, or it was a matter for his discretion. However, if he did assist my view was that he should report his intention to attend such a conference and report at the conclusion of any conference in accordance with the provisions of NSW Police Hand Book.”

20 In paragraph 6 he says:-

“In my view the requirements of any such report would be for the Senior Constable to:-
a. Provide a copy of any statement signed or adopted by him;
b. Disclose the nature of the evidence he intended to give at any hearing in a written report.”

21 In paragraph 9 he says:-

“At no stage was the Senior Constable told by me, or by anyone else to my knowledge, that there was any limitation on his attendance upon the plaintiff’s legal representatives or any restriction on him providing information (other than confidential police material) or giving evidence at the hearing and the requirement that he report was simply that referred to above in particular in paragraph 6.”

22 Annexed to the affidavit as Exhibit B is the Commissioner’s Forward to the NSW Police Service hand book. This states:-

“Therefore to assist you to carry out your work in a constantly changing work place, a set of guidelines, rather than a book of rules, have been developed for you to follow.”

23 Annexure C is a copy of pages W30 to W32 of the Hand Book. The relevant parts of this are:-

“Where you are to give evidence;

Which is not compatible with the interest of the service

Report it to your Commander
Include in your report, your knowledge of the case, your relationship to the party you are to give evidence for, the evidence you can give and the persons antecedents (where relevant).”

24 Under the heading “Evidence relating to official duties, Evidence for party other than police service” appear the words:-

“Report any request, or the receipt of the summons/subpoena issued by the defendant or the party other than the Police Service to your Commander. Set out your knowledge of the case and the person’s antecedents.”

25 The directions given by Commander Brian John Reith to Detective Senior Constable Anderson and Senior Constable Wilkinson appear in the affidavit of the Commander sworn 30 October 2002. In paragraph 4 of his affidavit he states:-

“The applications by Senior Constable Wilkinson and Detective Senior Constable Anderson were similar to many such applications I have received during the course of my service with the New South Wales Police. They are not remarkable and, as I understand the position, they are covered by the requirements of the New South Wales Police Hand Book specifically in page W30. The requirement to report simply requires the relevant officer to provide a copy of any statement which he or she has either signed or adopted and provide a summary of the nature of the evidence he or she expects to give at the relevant proceedings.”

26 The directions he noted on the notification from Detective Senior Constable Anderson was, “Attend conference and report subsequent to that meeting.”

27 The notification by Senior Constable Anderson initially came to attention of Chief Inspector Catherine Burn. In her affidavit of 30 October she says that she discussed the matter with Commander Reith who suggested that the report be referred to the Crown Solicitor. She wrote on the notification from the Senior Constable “Noted please provide a report of the exact nature of the evidence to be given.”

28 In his affidavit of 30 October 2002 Senior Constable Wilkinson says in paragraph 6:-

“I understood that I could attend a meeting with the plaintiff’s legal advisors and that I would truthfully provide information and then briefly report back on the nature of the evidence and give a copy of any statement. Annexed hereto and marked with the letter B is a copy of a “Richmond” Report, which shows the general format of such report.”

29 And in paragraphs 7,8 and 9:-

“7. I feel no concern about assisting the plaintiff. The requirement that I provide a report does not affect my willingness to attend at any conference with the plaintiff’s legal representative nor what I will say at any such conference. The issues have, in any event, been canvassed before the Royal Commission. However I may not disclose matters the publication of which has been restricted by Justice Wood at the Royal Commission, for example, details of covert methodology, and nor may I disclose confidential police business.
8. In response to paragraph 5 of the affidavit of Kim Smith sworn 16 August 2002 I say that I did not tell the plaintiff of any such limitation. I did tell him that I was seeking advice as to whether there was any limitation on my attending a conference. I do not recall speaking with Inspector Catherine Cole about this issue and Commander Wright has not placed any limitation on me as to giving evidence on behalf of the plaintiff or attending any conference.
9. I do not consider that the reporting requirement constitutes a threat to my employment or otherwise jeopardises my position within the New South Wales Police.”

30 In his affidavit sworn 31 October 2002, Sergeant Graham confirms that he sent the fax to the plaintiff’s solicitor on 5 June 2002 which is referred to earlier. In paragraphs 10 and 11 he says:-

“10 At the time I was willing, and remain willing, to attend such a conference. The reporting requirements contained in the Police Hand Book require me to notify my manager of any request to attend such conference. I would notify my manager of my attendance, discuss any relevant issues, and make a file note and attach it and any documentation given to me at the conference, to the relevant case file.
11. I do not consider that my service with New South Wales Police is in any way affected by discussing my evidence with Mr Fagan’s legal advisors and reporting back to my manager.”

31 It is now clear that the relevant police officers who are potential witnesses are, by virtue of the directions referred to above, required to do the following:-

1. Upon receipt of a request to give evidence or to attend a conference with the plaintiff’s legal representatives to notify his commander of its receipt.
2. The officer may at his option attend as requested at a conference. Of course he/she must comply with a subpoena to attend Court.
3. If he/she attends a conference with the legal representatives of the plaintiff he is then required to:-

a. Provide a copy of any statement signed or adopted by him

b. Report in writing as to the nature of the evidence he is intending to or likely to give.
4. As a police officer he is expected at any such conference to truthfully provide information
5. However he must not disclose matters the publication of which has been restricted by Justice Wood at the Royal Commission nor, in compliance with Police Regulation 46, may he disclose confidential police business.

32 Although the directions of Inspector Lapham are somewhat more detailed than those given by Commander Reith and Chief Inspector Wright they are substantially the same. It would be preferable to have uniformity in the form of directions given to police officers in these circumstances. It would certainly be preferable if Inspector Lapham were to amend her directions to coincide with those of the other two who are superior in rank to her.

The Plaintiff’s Submissions

33 On behalf of the plaintiff it was submitted that by these directions the defendant is attempting to obtain access to material that is the subject of legal professional privilege or otherwise confidential. This includes the contents of any conference between the plaintiff’s legal representatives and the statements of potential witnesses obtained by them.

34 At this stage it should be pointed out that the directions do not require the disclosure of the contents of any conference between the plaintiff’s legal representatives and the potential witnesses. What is required is something quite different, namely a written report as to the nature of the evidence which the potential witness is intending to or likely to give.

35 The plaintiff argues that if a written statement is taken from the potential witness by the plaintiff’s legal representatives for the purposes of the current proceedings then it is the subject of client legal privilege. I accept this proposition. See AG (NT) –v- Maurice 161 CLR 475 at 487.

36 The plaintiff submits that, in the circumstances, any attempt by the defendant to issue directions to its employees requiring by force of law that those employees provide a copy of any statement given to the plaintiff’s legal representative can only be for the purpose of forcing potential witnesses to disclose information that is otherwise the subject of legal professional privilege or otherwise the subject of protection as constituting part of the “brief” by which the plaintiff proposes to prove his case.

37 In written submissions the plaintiff seeks Declaratory Relief pursuant to Section 75 of the Supreme Court Act and/or a direction pursuant to Part 26 Rule 1 of the Supreme Court Rules. In effect the declarations sought are that the directions given to the Police Officers set out above are not lawful orders.

38 In his written submissions counsel for the plaintiff says:-

“The plaintiff recognises that the Court cannot grant any form of relief or make any orders that would prevent any of the proposed witnesses from voluntarily disclosing the contents of any statement provided by them to the plaintiff’s legal representative. But this is not the evil against which the plaintiff seeks relief. Rather the plaintiff seeks relief from the attempt of the defendant to impose any form of legal requirement or obligation upon the named potential witnesses to disclose the contents of any conference in which they may participate with the plaintiff’s legal representatives and or the contents of any statements those potential witnesses may supply to the plaintiff’s legal representatives.”

39 At the request of Counsel for the defendant I agreed to his submitting written arguments on the issue of Declaratory Relief. These were received on 4 November. On 11 November I received the reply from Counsel for the plaintiff.

Findings

40 As is pointed out in J-Corp Pty Limited -v- BLF 110 ALR 510 at page 515:-

“The privilege attaching to statements taken from potential witnesses may not be supportable by public interest considerations of the same order as those enunciated in
Grant -v- Downs in relation to solicitor client communications although it arrises in the context of the solicitor/client relationship. The confidentiality which attends their taking is of a limited character. There is nothing to stop a prospective witness who has given a statement to a solicitor from announcing that fact and the contents of the statement to the world at large. In the ordinary course, neither the solicitor or his client could do anything to prevent such disclosure.”

41 Hence, a potential witness is at liberty to take his statement to the opposing party. What then is the difference if he is compelled by direction having the force of law so to disclose it?

42 The direction merely requires him to do something which he is at liberty to do in any event and to do something which cannot give rise to complaints from the plaintiff’s solicitor or the plaintiff.

43 This may not be so if the witness were so senior in the ranks of a party as to make him in effect the party. That is not the situation here.

44 In determining whether to grant the plaintiff the relief he seeks, I must consider three questions:-

1. Does the conduct of the defendant in giving the directions stated above amount to a contempt of court?
2. Does the conduct in giving the directions stated above amount to an obstruction of the course of justice?
3. Do the directions require the witness to do something that is not lawful?

45 The first two can be taken together. The conduct of the defendant does not constitute a breach of any orders or rule or practice or procedure of the court. It does not impede or obstruct the plaintiff’s legal representatives from interviewing potential witnesses and determining the extent to which, if at all, they can assist the plaintiff’s case. It does not impede the potential witnesses from giving full and truthful information to the plaintiff’s legal representatives. It does not constitute or involve a threat of reprisals to those potential witnesses in return for attending a conference with the plaintiff’s legal representatives or for giving evidence on behalf of the plaintiff. It does not impede or obstruct the plaintiff’s legal representatives from the adequate and proper preparation and presentation of the plaintiff’s case for trial.

46 The fact that a potential witness is directed to report upon the request to attend a conference has not being shown to my satisfaction on the balance of probabilities to amount to an interference in the plaintiff’s proper presentation and preparation of his case.

47 The requirement to give a copy of any statement signed by or adhered to by the potential witness does not amount to a contempt of court or an obstruction of justice. Indeed, the disclosure to both parties of the nature of the evidence of a potential witness can often facilitate the course of justice.

48 The confidentiality attaching to a witnesses’ statement is, as pointed out in J Corp –v- BLF (above), of a very limited character. Accordingly I can see nothing in the directions objected to which amounts to a contempt of court or conduct obstructing the course of justice.

49 I would also add that one of the purposes of Court controlled Case Management is to prevent a party to litigation from being taken by surprise by evidence given during a hearing. In furtherance of this purpose it requires the giving of full information so that each party knows the nature of the case it has to meet. One would expect that if a police officer gives information to the legal representatives of the plaintiff then he or she would give substantially the same information to the legal representatives of the defendant.

50 For reasons already given I am not satisfied that the directions as outlined above requires the potential witnesses to do something that is against the law or unlawful.

51 Returning to the orders sought in paragraph 2 of the plaintiff’s amended summons I expressly make the following findings of fact:-

1. The plaintiff has failed to satisfy the Court on the balance of probabilities that any conduct of the defendant has had the affect of denying the plaintiff and/or his legal representatives access to witnesses who are employees of the defendant.
2. The plaintiff has failed to satisfy the Court on the balance of probabilities that the defendant has interfered with the plaintiff’s witnesses.
3. The plaintiff has failed to satisfy the Court on the balance of probabilities that the defendant thus far has done or omitted to do anything which gives rise to a reasonable apprehension that it will do either of the matters referred to in paragraphs 1 and 2 above.

52 Accordingly, for these reasons alone the plaintiff is not entitled to the relief sought.

53 It was not until the second day of hearing that the plaintiff in written submissions sought Declaratory Relief. This Court undoubtedly has a discretion to grant this relief. The question is whether such relief should be granted. I have decided not to grant it for the following main reasons:-

a. I am not satisfied that the directions issued do not constitute a lawful order or a lawful duty for the purposes of Section 201 of the Police Act.
b. In proceedings such as the present the real issue is whether the conduct of the defendant amounts to a contempt of court or to an obstruction of the course of justice or otherwise conduct which frustrates the plaintiff in the proper presentation and preparation of his case for trial. The plaintiff has failed to satisfy the Court on these issues.
c. The plaintiff has no locus standi entitling him to such relief. The validity of orders given by a superior officer of the Police Service to an officer of lower rank is a matter as between those officers. He is seeking declaratory relief governing the employment relationship between potential witnesses and their employer. Those potential witnesses are not parties to this application.
d. The directions given to the potential witnesses merely require them to do something which the plaintiff could not restrain them from doing.

Costs

54 I now pass to the question of costs. I reserved the question of costs on the first day of hearing on 17 October 2002. The adjournment was rendered necessary because the defendant was not ready in the respects previously mentioned. Accordingly I order the defendant to pay the plaintiff’s costs of the day of 17 October 2002.

55 The plaintiff has failed on his application. Following the normal rule, the plaintiff would be ordered to pay the defendant’s costs.

56 However, this Application by Summons was rendered necessary by the conduct of the defendant in failing to answer the plaintiff’s reasonable and proper queries raised in letters from the plaintiff’s solicitors to the defendant’s solicitor as long ago as 19 June 2002. Indeed, it was not until 30 October 2002, the day before the continuation of the hearing, that the actual terms of the directions were provided to the plaintiff’s solicitors. Under these circumstances I order that subject to the prior order relating to the cost of 17 October 2002 each party bear and pay its own costs of the summons.

Formal Orders

57 The formal orders are as follows:-

1. The orders sought in paragraph 2 of the Amended Summons dated and filed 9 July 2002 are refused and the summons is dismissed to that extent.
2. The defendant is ordered to pay the plaintiff’s costs of the day of 17 October 2002 and, subject to this, each party is to bear and pay its own costs.

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Last Modified: 01/06/2003