Fairfax Publications Pty Ltd v Abernethy - [1999] NSWSC 826

CITATION: FAIRFAX PUBLICATIONS PTY LTD v ABERNETHY [1999] NSWSC 826

CURRENT JURISDICTION: Administrative Law List

FILE NUMBER(S): 30015/99

HEARING DATE(S): 20/04/99, 21/04/99. 21/05/99, 27/05/99

JUDGMENT DATE:
27 May 1999

PARTIES :

John Fairfax Publications Pty Limited (Plaintiff)
John Abernethy (Defendant)

JUDGMENT OF: Adams J at 1

LOWER COURT JURISDICTION: Coroners Court

LOWER COURT FILE NUMBER(S) :

LOWER COURT JUDICIAL OFFICER:

COUNSEL : Mr T D Blackburn (Plaintiff)
Mr M J Leeming (Defendant)

SOLICITORS: Freehill Hollingdale & Page (Plaintiff)
I V Knight (Defendant)

CATCHWORDS: Subpoena to Coroner; advice from Crown Solicitor; whether privileged; whether obtained for improper purpose; meaning of impripriety; s 125 Evidence Act 1995

ACTS CITED: Coroners Act 1980
Evidence Act 1995
Aboriginal Land Rights (Northern Territory) Act 1976

CASES CITED: Attorney General for the Northern Territory of Australia v Kearney [1985] 158 CLR 500
Bullivant v Attorney General (Victoria) [1901] AC 196

DECISION: Subpoena quashed

Transcript revised THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION
ADAMS J

THURSDAY 27 MAY 1999

30015/99

JOHN FAIRFAX PUBLICATIONS PTY LIMITED v JOHN ABERNETHY

JUDGMENT - Quashing plaintiff’s subpoena, see p 71 of transcript
1 HIS HONOUR: The plaintiff seeks a declaration that the defendant, acting as a Deputy State Coroner in "reopening" an inquest into the death of Caroline Theresa Byrne, acted in excess of his jurisdiction. 2 For present purposes it is necessary only to state that it is prima facie established that the defendant did so for the purpose of enabling him to exercise the powers under section 44 of the Coroners Act to prevent publication of material which had been supplied by the police at a time following his making of an open finding in relation to Miss Byrne's death. 3 The plaintiff issued a subpoena directed to the Crown Solicitor to produce written communications or notes of such communications between the Deputy State Coroner and the Crown Solicitor. Mr Abernethy intimated during the course of the "reopened" proceeding that he had sought and obtained such advice in connection with the proceeding and by implication the order under section 44 which he proposed to make. 4 In the ordinary course such communications would be privileged. It has, however, been submitted to me that either by virtue of the common law or by virtue of section 125 of the Evidence Act 1995 (the Act) the privilege is expunged or does not arise. For present purposes, if there is a difference between the common law and section 125, it is immaterial. 5 Communications of the kind specified in the subpoena did occur and have been produced to the Court. In accordance with the procedure enunciated by the High Court of Australia in Alister v R (1984) 154 CLR 404, and with the consent of both parties, I have examined those documents. However, I have been able to come to my conclusion without regard to their content. Nevertheless, because of the importance of this matter, I should observe that nothing in the documents would assist the plaintiff to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWSC 826
Decision Date: 27 May 1999

CaseChat Overview and Summary

The dispute between Fairfax Publications Pty Ltd and Abernethy involved the subpoena issued by the Coroner for documents from Fairfax. The respondent sought an order that the subpoena was obtained for an improper purpose and was therefore invalid. The matter was heard in the Supreme Court of New South Wales. The central legal issues before the court were whether the advice provided by the Crown Solicitor was privileged and whether the subpoena was obtained for an improper purpose. Additionally, the court needed to determine the meaning of impropriety under section 125 of the Evidence Act 1995.

The court considered whether the advice given by the Crown Solicitor to the Coroner was privileged and thus exempt from the subpoena. It was determined that the advice was not privileged as it did not fall within the scope of legal professional privilege. The court also examined whether the subpoena was obtained for an improper purpose. It found that the subpoena was not obtained for an improper purpose as it was issued in the course of an official duty. The court concluded that the term "impropriety" in section 125 of the Evidence Act 1995 referred to conduct that is improper or unlawful, and the subpoena did not meet this criterion. Therefore, the subpoena was not invalid.

The court ruled in favour of Fairfax Publications Pty Ltd and dismissed the respondent's application. The court found that the subpoena was properly issued and not obtained for an improper purpose. Consequently, the subpoena remained valid and enforceable.

Orders