GR v Department of Communities and Justice

[2021] NSWSC 721

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

GR v Department of Communities and Justice [2021] NSWSC 721

Hearing dates:

On the papers

Date of orders:

18 June 2021

Decision date:

18 June 2021

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

1.   Grant leave to the first and second defendants to have access to the material produced by the Queensland Police Service in this proceeding in answer to the subpoena issued on 4 March 2021.

Catchwords:

EVIDENCE — Privileges — Client legal privilege — Evidence Act 1995 (NSW), ss 120, 131A — Privilege claimed over documents produced under subpoena by third party — Whether common law or statute applies — Legal professional privilege — Dominant purpose test

Legislation Cited:

Child Protection Act 1999 (Qld), ss 186(2), 189

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 86, 91, 93

Domestic and Family Violence Protection Act 2012 (Qld), s 159

Evidence Act 1995 (NSW), ss 117, 120, 122, 131A

Cases Cited:

Armstrong Strategic Management & Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd (2012) 295 ALR 348; [2012] NSWCA 430

Barnes v Commissioner of Taxation (2007) 242 ALR 601; [2007] FCAFC 88

Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49; [1999] HCA 67

Grant v Downs (1976) 11 ALR 577

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

In the matter of Northern Energy Corporation Ltd (2020) 147 ACSR 572; [2020] NSWSC 1073

Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66

New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60

NU v Secretary of Family and Community Services (NSW) (2017) 95 NSWLR 577; [2017] NSWCA 221

Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083

SL v Secretary, Department of Family and Community Services [2016] NSWCA 124

Category:

Procedural rulings

Parties:

GR (Plaintiff)
Department of Communities and Justice (First Defendant)
Minister for Families, Communities and Disability Services (Second Defendant)
The father (Third Defendant)
Krstina Wooi (Fourth Defendant)

Representation:

Counsel:
GR (self-represented)
M Anderson (First and Second Defendant)

Solicitors:
K Smith (First and Second Defendant)

File Number(s):

2020/00123080

Publication restriction:

publication restriction lifted.

Judgment

1. HER HONOUR: Referred to me by the Expedition List judge (for determination on the papers) is a claim by the plaintiff in these proceedings asserting privilege in respect of certain documents produced by the Commissioner of the Queensland Police Service in answer to a subpoena issued by the first and second defendants in the substantive proceeding (the Secretary, Department of Communities and Justice and the Minister for Families, Communities and Disability Services, respectively). For the purposes of this application, I have had the benefit of written submissions from the plaintiff and from the first and second defendants; and I have inspected the documents over which the plaintiff claims privilege (and to which the first and second defendants have not yet had access).

Background

2. The substantive proceeding (the hearing of which has been expedited and is listed to commence on 5 July 2021 before the Expedition List Judge) involves an appeal pursuant to s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Children and Young Persons (Care and Protection) Act). The plaintiff is the mother of the child the subject of the final care orders being appealed in this Court. The third defendant is the child’s father; and the child is the fourth defendant.

3. On 4 March 2021, a subpoena was issued at the request of the first and second defendants addressed to The Commissioner of Queensland Police Service seeking production, inter alia, of: a copy of the application for a protection order applied for by the Queensland Police Service on behalf of the child’s father against the child’s mother; and all records held by the Queensland Police Service relating to the protection order, including statements, correspondence, records and transcripts of any hearings, and documents filed at the hearings or orders made at the hearings.

4. The Queensland Police Service produced documents in answer to the subpoena by letter dated 18 March 2021.

5. In this regard, I note that when the documents were produced the Court was notified that the Commissioner of Police requested the making of any orders (including limiting publication and/or disclosure) considered necessary or appropriate to protect the interests of any persons who may be affected by the release of the materials. Reference was made in this regard to: s 159 of the Domestic and Family Violence Protection Act 2012 (Qld), which provides for statutory restrictions on the publication and dissemination of domestic violence information; and ss 186(2) and 189 of the Child Protection Act 1999 (Qld), which prohibit the publication of information which can identify the identity of a notifier of harm or a risk of harm; or that identifies or is likely to identify a child as being the subject of an investigation under the Act in the Chief Executive’s custody or a child for whom an order is in force. The letter further noted that the material produced had been edited to protect the identity or identifying details of persons unrelated to this matter.

6. On 9 April 2021, Sackar J made orders granting the plaintiff first access to documents so produced until 10.00am on 16 April 2021 and made directions for the filing and service of submissions as to the privilege claim by the respective parties. The timeframe within which the plaintiff was granted first access was subsequently extended in order to permit the plaintiff an opportunity to identify the documents the subject of the claim for privilege.

7. An envelope containing the documents over which privilege has been claimed has now been received by the Registry and forwarded to my associate, pursuant to directions made that the claim for privilege be dealt with on the papers by a judge other than the trial judge. I have also, as noted above, had the benefit of written submissions as to the privilege claim.

Nature of the proceedings

8. In an appeal under s 91 of the Children and Young Persons (Care and Protection) Act the appellate court exercises all the functions and discretions of the Children’s Court and decides the matter before it with reference to the legislation in force at the time of the new hearing (see SL v Secretary, Department of Family and Community Services [2016] NSWCA 124 at [108] per Basten JA (with whom I agreed); NU v Secretary of Family and Community Services (NSW) (2017) 95 NSWLR 577; [2017] NSWCA 221 at [20]-[21] per Beazley P, as her Excellency then was (with whom McColl JA and Schmidt J agreed).

9. Section 93 of the Children and Young Persons (Care and Protection) Act which is engaged on the hearing of the appeal, provides as follows:

93    General Nature of Proceedings

(1)    Proceedings before the Children’s Court are not to be conducted in an adversarial manner.

(2)    Proceedings before the Children’s Court are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit.

(3)    The Children’s Court is not bound by the rules of evidence unless, in relation to particular proceedings or particular parts of proceedings before it, the Children’s Court determines that the rules of evidence, or such of those rules as are specified by the Children’s Court, are to apply to those proceedings or parts.

(4)    In any proceedings before the Children’s Court, the standard of proof is proof on the balance of probabilities.

(5)    Without limiting subsection (4), any requirement under this Act that the Children’s Court be satisfied as to a particular matter is a requirement that the Children’s Court be satisfied on the balance of probabilities.” (emphasis added)

Plaintiff’s claim for privilege

10. The plaintiff objects to the release of the Queensland Police subpoena documents to any party on the basis that those documents disclosed alleged confidential communications between the plaintiff and the third defendant, the plaintiff here invoking s 120(1) of the Evidence Act 1995 (NSW) (Evidence Act) (see the plaintiff’s submissions dated 14 April 2021 at [14]).

11. Section 120(1) of the Evidence Act relates to unrepresented parties and provides that evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of:

(a)   a confidential communication between the party and another person; or

(b)   the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of the party,

for the dominant purpose of preparing for or conducting the proceeding.

12. Section 117 of the Evidence Act defines the terms “confidential communication” and “confidential document”, in both instances by reference to circumstances in which the relevant person (i.e., the person who made or to whom the communication was made or the person who prepared or for whom the document was prepared) was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law.

13. The plaintiff complains in her submissions that the first and second defendants continue to have inappropriate communications about this case with her opponents in other cases “including HCCC [Health Care Complaints Commission], for the purpose of prejudicing [her] other cases against [her]” (see her submissions at [17]) and she asserts that this has resulted in the issue of “a bizarre ‘fishing expedition’ subpoena” in the NSW Civil and Administrative Appeal Tribunal (a copy of which is attached to her submissions). The issue of that subpoena does not appear to have anything to do with the application for privilege in the documents produced by the Queensland Police Service in the present proceeding.

14. As to the documents over which the plaintiff here claims privilege, the plaintiff’s application for an order refusing access to the subpoena documents is put on the basis that the subpoenaed documents “are likely to be released by CSO to [the plaintiff’s] opponents” in the other cases to which the plaintiff has referred (see submissions at [20]).

15. The plaintiff disputes that the Queensland Police subpoena documents will disclose information about the relationship between the parents essential to the care of the child (as it is said that the father has consistently stated that the child should be in the child’s own home in the care of the mother; and that the father will not live with the child and will have minimal contact) (see submissions at [21]).

16. The plaintiff refers to previous submissions to the effect that the father lacks credibility; asserting that the father filed a contradictory affidavit in this case to the Children’s Court and that the father has sworn a deliberately false affidavit in the Family Court; those being matters that it said mean that statements made by the father (to the local court or to the Queensland Police) have no forensic purpose.

First and second defendants’ submissions

17. The first and second defendants say that it is unclear how the subpoena as drafted could capture any documents that fulfil the definition of “confidential document”, or any communication that fulfils the definition of “confidential communication”, prepared for the dominant purpose of preparation for or the conduct of the proceeding.

18. Insofar as the plaintiff’s submissions raises a number of allegations in relation to other proceedings in which she is involved (including those with the Health Care Complaints Commission), the first and second defendants dispute those allegations. In particular, it is said that no officer of the Crown Solicitor’s Office was “sacked by the Attorney General in 2020 for disclosing suppressed information from this case to [the plaintiff’s] opponents in [the plaintiff’s] defamation case against Dr Khan” (c.f., the plaintiff’s submissions at [17]).

19. Insofar as the plaintiff’s submissions (at [21]-[24]) relate to the legitimate forensic purpose for the subpoena issued to the Queensland Police Service, the first and second defendants say that this matter was determined by Sackar J on 30 March 2021 (and, to the extent that the matter is re-agitated, the first and second defendants would rely on their submissions filed on 18 March 2021).

20. The first and second defendants note that [1]-[11] of the plaintiff’s submissions relate to the issue of contact. The first and second defendants say that this is not the subject of the present application (and they point out that there is no subsisting contact order pursuant to s 86 of the Children and Young Persons (Care and Protection) Act).

Determination

21. At the outset it should be noted that all that has been referred to me for determination (on the papers) is the claim for privilege asserted by the plaintiff in the documents identified by her out of the material produced by the Queensland Police Service in answer to the subpoena issued at the request of the first and second defendants in the present proceeding. Therefore, submissions as to the status of, or complaints as to non-compliance with, contact orders are not relevant to this application. Nor are the submissions made by the plaintiff as to the documents in respect of which she has herself issued subpoenas (which I have not included in the summary of submissions above). Nor is this the occasion to revisit whether there is a legitimate forensic purpose to the issue of the subpoena to the Queensland Police Service, that having been determined by Sackar J already.

22. The plaintiff’s claim for privilege, as noted above, is based on the subject documents being documents which, if adduced in evidence, would result in the disclosure of either a confidential communication between the party objecting thereto and another person or the contents of a confidential document prepared by or at the direction or request of the party objecting thereto; and in either case for the dominant purpose of preparing for or conducting the proceeding in which the evidence is sought to be adduced (see Evidence Act ss 120, 131A).

23. Pausing here, in Singtel Optus Pty Ltd v Weston (2011) 81 NSWLR 526; [2011] NSWSC 1083 (Singtel), White J, as his Honour then was, considered the question whether the common law or statute applies when an objection is made (as is here the case) to the inspection of documents produced on subpoena (see from [25]ff). His Honour there concluded that where objection to inspection was taken by the person required to produce the document on subpoena or notice to produce, the Evidence Act and not the common law applied but that s 131A did not apply where (as here) the claim for privilege was made by persons other than the person required to produce the documents (and that, in those circumstances, the common law applied) (there citing New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [32] per Allsop P as his Honour then was (with whom Hodgson JA and Sackville AJA agreed)). Rees J in In the matter of Northern Energy Corporation Ltd (2020) 147 ACSR 572;[2020] NSWSC 1073 (the Northern Energy Corporation case) followed the reasoning of White J in Singtel (see at [3]).

24. Therefore, the claim for privilege here being made by the plaintiff (a person other than the person required to the produce the documents – that being the Queensland Police Service), it would be the common law that applies to govern whether the documents are the subject of a claim for privilege and not the Evidence Act. The difference may be relevant where the issue is as to waiver of privilege because, as Rees J noted in the Northern Energy Corporation case referred to above, common law principles in respect of waiver are not identical to s 122 of the Evidence Act as to the circumstances in which privilege may be lost (there referring to Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [23] (Mann v Carnell)).

25. In the present case, none of the submissions addressed the position as to the common law (no doubt because the claim for privilege was expressly predicated by the plaintiff on s 120 of the Evidence Act) but nothing ultimately turns on this since in either case (for the reasons set out below) my determination would be the same.

26. The documents produced can be broadly described as falling into two categories. First, material provided by the father in support of an application for an apprehended violence order against the mother and material relating to the adjournment of that application and difficulties encountered in service on the mother in relation thereto. Second, a decision published in the Children’s Court of New South Wales on 3 April 2020.

27. As to the second, not only is there no basis on which it could be said that this is properly the subject of a claim for privilege on the part of the mother, it is a document to which the first and defendants have already had access (being parties to the proceeding in which those reasons were published). Access to the judgment was the subject of a publication restriction but not as to the parties to the proceeding.

28. As to the first, the material in question does not satisfy the test for legal professional privilege at common law. It is not a confidential communication made or brought into existence for the dominant purpose of providing or obtaining legal advice or for use in pending or contemplated litigation (Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49; [1999] HCA 67 at [61] per Gleeson CJ, Gaudron and Gummow JJ; Armstrong Strategic Management & Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd (2012) 295 ALR 348; [2012] NSWCA 430 at [85] per Campbell JA (with whom Macfarlan JA agreed)). I note that a claim for legal professional privilege demands focused and specific evidence to ground it, verbal forumulae and bare conclusory assertions of purpose are not sufficient to make out the claim (Barnes v Commissioner of Taxation (2007) 242 ALR 601; [2007] FCAFC 88 at [18] per Tamberlin, Stone and Siopsis JJ). Further, the court has the power to examine the documents, as has occurred on the present application, which “may illuminate the purpose for which they were brought into existence” (Grant v Downs (1976) 11 ALR 577 at 589 per Stephen, Mason and Murphy JJ). In Mann v Carnell at [28], the High Court noted that “[l]egal professional privilege exists to protect the confidentiality of communications between lawyer and client”. The material over which privilege is here claimed is not of that kind. Rather, it is material provided to the Queensland Police by a complainant in connection with an application for an apprehended violence order and in relation to attempts to serve the person against whom the order was sought.

29. Even if s 120 of the Evidence Act applied, the material would not fall within that section. On its face, the first category of material was not for the dominant purpose of preparing for or conducting the present proceeding – it related to a completely different application; as to the second category of material (the reasons for judgment), that clearly was not a confidential communication between the party (i.e., the plaintiff) and another person nor was it a confidential document prepared by or at the direction of the party, let alone the difficulty that it, again, was not prepared for the dominant purpose of preparation for or the conduct of the proceeding.

30. Therefore, the claim for privilege is in my view misconceived and access should be granted to the first and second defendants to the material in question. They should, however, bear in mind the statutory restrictions in respect of the disclosure of material to which the Queensland Police Service has drawn attention when producing the material.

21. Insofar as the plaintiff’s concern appears to be that access to the material will permit the first and second defendants improperly to use the material (to her disadvantage) in other litigation to which she is a party, it should be noted that the first and second defendants will be bound by the implied Harman undertaking (Harman v Secretary of State for the Home Department [1983] 1 AC 280). Hence, the defendants would require leave before being permitted to use in other proceedings material obtained under the Court’s compulsory processes in this proceeding.

22. For the above reasons, I make the following order:

1. Grant leave to the first and second defendants to have access to the material produced by the Queensland Police Service in this proceeding in answer to the subpoena issued on 4 March 2021.

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Amendments

26 January 2024 - publication restricted lifted

Decision last updated: 26 January 2024