Harradine v The Commissioner of Police - [2016] SADC 135

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
HARRADINE v THE COMMISSIONER OF POLICE
[2016] SADC 135
Judgment of His Honour Judge Cuthbertson
1 December 2016
MAGISTRATES - APPEAL AND REVIEW
Application to review a judgment upholding a claim for public interest immunity - Whether an application for pre-action discovery antecedent to a small claim is a minor civil claim - Whether the District Court has jurisdiction to review.
HELD: An action for pre-action discovery before a proposed action which would itself be a small claim is an action founded on a small claim and is reviewable in the District Court.
The ruling of the Magistrate that the documents sought by pre-action discovery are subject to public interest immunity because they would reveal the identity of an informer is upheld.
Magistrates Court (Monetary Limits) Amendment Act 2016 s 4; Magistrates Court Act 1991 s2, s 38 & s 40; Criminal Law Consolidation Act (Appeals) Amdendment Act 1995 s 11; Magistrates Court (Civil) Rules 2013 r 20, referred to.
Haydon v Magistrates Court (2003-04) 87 SASR 448; Application for Reservation of Question of Law No SCCRM-97-222, Judgment Number 6420, considered.

HARRADINE v THE COMMISSIONER OF POLICE
[2016] SADC 135

The Applicant is a school teacher who, at the relevant time, was residing at Eudunda and teaching at the local school. He was engaged in a matrimonial dispute with his former wife.
Police attended his premises unannounced claiming to be checking on the welfare of his child. The child in question was to be handed over to his former wife by order of the Family Court.
The applicant claims that he suffered embarrassment and his character was defamed by the attendance of police to his premises in a small country town. This would have come to the notice of the townspeople, especially as he was a school teacher who had recently moved there.
The applicant wishes to issue defamation proceedings against whoever it was that conveyed to police the information that caused their attendance at the premises on the occasion in question.
He alleges that that information was false.
In order to ascertain the identity of the person who allegedly defamed him, an application was issued in the Magistrates Court dated 29 December 2015 seeking an order that “The Commissioner of Police in the State of South Australia make discovery and disclosure of documents relating to the attendance on 23 January 2015 of a member of South Australian Police at 7 Hambour Avenue, Eudunda, South Australia, …”
The application annexed a copy of a letter dated 1 December 2015 directed to the Commissioner of Police, informing him that the applicant intended to bring an action against the unknown person who made a report to the South Australian police that caused the officer to attend to conduct a “welfare check in relation to his four year old son”.
The police having declined to provide the requested information, an application was made for discovery before action in the Magistrates Court.
Also annexed to the application were draft Particulars of Claim claiming $15000 for defamation.
The Commissioner for Police, respondent to the proceedings, claimed public interest immunity so as to be spared the requirement to produce any documentation in response to the application.[1]
[1] See affidavit of Sean Healy, sworn 20 January 2016.
The Magistrate declined to order production of the relevant documents upholding the Commissioner’s claim for public interest immunity.
As the foreshadowed claim for defamation was for $15000 and would have been a small claim within the meaning of the Magistrates Court Act, the applicant has sought a review in the District Court of the Magistrate’s decision not to order production of documents.
Jurisdiction
The small claims jurisdiction of the Magistrates Court was reduced from $25000 to $12000 by Act No 27 of 2016.
The amending Act commenced from 1 August 2016.
The transitional provision within the amending Act states that,
The amendments made to s 3 of the Magistrates Court Act 1991 by this Act –
(a) do not apply in respect of proceedings commenced before the commencement of this Act (and those proceedings may continue as if this Act had not been enacted); and
(b) apply in respect of proceedings commenced on or after the commencement of this Act (including proceedings in respect of a claim arising before the commencement of this Act).
The proceedings in this matter, being an application for pre-trial discovery, were filed on 29 December 2015. Hence paragraph (a) applies, and the limit for a small claim was $25000 at the time of the application for pre-trial discovery and at the time of the decision in respect of which a review is sought.
The proposed claim filed with the application claims an amount of $15000, well within the then-existing small claim limit of $25000. Hence by virtue of the transitional provisions of the Magistrates Court (Monetary Limits) Amendment Act 2016, at the time the application for pre-trial discovery was filed, and at the time of the Magistrate’s decision, the proposed defamation action would have been within the small claims jurisdiction of the Magistrates Court.
The proposed claim is to be against the person who, the applicant infers, must have falsely informed the police about the applicant’s treatment of his child so as to cause attendance by members of the SA Police at the premises of the applicant on 23 January 2015 at Eudunda.
None of the documentation filed in the Magistrates Court indicates whether the proceedings before the Magistrate for pre-action discovery were supposed to constitute a small claim or not, nor is there any indication that the Magistrate made any decision as to whether or not he was dealing with it as a small claim.
A minor civil action in the Magistrates Court, however, is such by virtue of the nature of the application before the Court and not because one or other of the parties asserts in the pleadings, or otherwise, that the matter is a minor civil action.
The issue of whether the proceeding in the Magistrates Court was a minor civil action has consequences both as to the manner in which the trial proceeds in the Magistrates Court and on the question of whether this court has jurisdiction to entertain a review of the proceedings in the Magistrates Court.
Section 40 of the Magistrates Court Act 1991 provides for a right of appeal from the Magistrates Court in a civil action (except a minor civil action) to the Supreme Court of South Australia.
Section 38 of the Magistrates Court Act 1991 provides as follows,
(6) The District Court (constituted of a single Judge) may, on the application of a party dissatisfied with a judgment given in a minor civil action, review the matter.
By s 3(1) of the Act, a ‘judgment’ means ‘a judgment, order or decision and includes an interlocutory judgment’. The Magistrate’s refusal to order discovery is clearly a decision that falls within that definition.
My power to review the action is therefore dependent upon it being a “judgment given in a minor civil action”. The action is the application for pre-trial discovery.
A civil action is defined in the Magistrates Court Act 1991 as an action or proceeding “brought in a civil division of the Court”.
A criminal action is defined as an action or proceeding “brought in the criminal division of the Court”.
Both definitions carry with them the implication that they relate to an action or proceeding that is actually filed in the Court and not merely an action or proceeding that is in contemplation but not yet filed.
The Act defines a minor civil action as being an action founded on inter alia a small claim, which itself is defined as a monetary claim for $25000 or less.
Does a small claim have to actually be made i.e. filed in court for a minor civil action to be an action founded on it or is it enough that it be simply in contemplation?
It is difficult to contemplate any other case where there is an action founded on another claim which has not been filed or made except in the case of pre-action discovery which, by its very nature, is an application made in court before the action upon which it is founded is filed.
Such an action would clearly, in my view, be founded on a small claim if it is enough that the small claim be in contemplation.
A small claim is defined as a monetary claim for $12000 or less.
The absence in the definition of small claim of the phrase “brought in the Court” or filed in the court indicates to me that there is no requirement that the small claim actually be filed in the court and that it is enough that it be merely in contemplation.
Section 3 of the Magistrates Court Act 1991, the interpretation section, relevantly provides as follows,
(2)Subject to subsections (3) and (4), a minor civil action is an action founded on—
(a)       a small claim; or
(b)      a claim for relief in relation to a neighbourhood dispute; or
(c)       a minor statutory proceeding.
(3)A “small claim” is defined to mean “a monetary claim for $12000 or less” or as the legislation then was and by virtue of the transitional provision referred to is, for the purposes of these proceedings, “a monetary claim for $25000 or less.”
The question is whether the proceeding, namely the application for pre-trial discovery before the Magistrate, was an action founded on a small claim.
Rule 20(1) of the Magistrates Court (Civil) Rules 2013 states the following,
A person intending to bring an action may, in notice in writing to another person, request the other person to make discovery, and disclose the present whereabouts, of any document or property that is relevant to the proposed action.
Rule 20(2) allows the Court to order discovery if such a request is not complied with. The application for such an order is, of course, a proceeding.
The application for pre-trial discovery is therefore an appropriate proceeding recognised in the Magistrates Court Rules.
Was the action for pre-trial discovery an action founded on a small claim, the claim itself not having been made but merely foreshadowed?
The action for pre-trial discovery is, in my view, based or “founded on” a “monetary claim” for $25000 or less and thus is founded on a small claim.
In Application for Reservation of Question of Law[2], Doyle CJ, in a judgment concurred in by the other two members of the Full Court, in connection with the phrase “founded on” in s 11 of the Criminal Consolidation Act (Appeals) Amendment Act 1995 said,
My primary reason rests upon what I consider to be the ordinary meaning of the words “founded on”. I consider that those words import the notion of one thing depending on or relying upon another thing, and not simply a coincidence or similarity of subject matter.
[2] No SCCRM-97-222, judgment number 6420.
In this case the application for pre-trial discovery is permitted by virtue of Rule 20(1) of the Magistrates Court Rules because it is relevant to a proposed action.
The proposed action is as set out in the draft Particulars of Claim annexed to the affidavit[3] which accompanies the application. The relevance of the documents sought by discovery can only be measured by reference to that proposed action.
[3] See affidavit of Brendan Conway Harradine, 29 December 2015.
It is clear that the policy of the legislation is to require that the provisions providing for more informal litigation of certain actions are confined only to small claims and do not permit for the procedure to be used where an action other than a small claim is added to the small claim. (See s 3(3)).
There is an analogy with an application for discovery, or for summary judgment or for issue of interrogatories in a small claim action. Each application would be “founded on a small claim” and thus subject to review in the District Court. The only difference here is that the small claim has not yet been initiated. This is because the plaintiff cannot initiate the claim until he knows the identity of the defendant.
This requires obtaining the information sought by pre-action discovery.
The proposed action would be a small claim because of the amount claimed.
The use of the phrase “founded on” widens the jurisdiction. Jurisdiction exists if the matter subject to review or appeal is a small claim or alternatively is founded on a small claim. It exists in more than just a small claim, it exists if something is founded on a small claim.
It follows, therefore, that the decision of the Magistrate is in a minor civil action because it is in an action “founded on a small claim” and hence is subject to review by the District Court.
Accordingly the District Court has jurisdiction under s 38 of the Magistrates Court Act 1991 to hear this matter as a review under s 38.
Public Interest Immunity
I am of the view that the documentation sought is relevant to the proposed action and could therefore be the subject of an order for pre-trial discovery or production on subpoena subject to any claim of public interest immunity.
In support of the claim for public interest immunity the respondent has filed an affidavit. The affidavit has been sworn on behalf of the Commissioner of Police[4] and no point has been taken concerning the status of the deponent. On the basis of the affidavit I find that the document that would answer the description of what was requested, is subject to public interest immunity.
[4] See affidavit of Sean Healy, 20 January 2016.
A claim for public interest immunity is a balancing act, balancing the need for protection of the relevant information and the public interest in the disclosure of the information.
Doyle CJ in Haydon v Magistrates Court,[5] described the balancing act in the following manner,
I must balance the importance of the public interest in the preservation of anonymity, and in the protection of material provided by informers, against the public interest in what I will compendiously describe as a fair trial in which the Court has access to all relevant material. In doing that must I consider whether the disclosure of the relevant material may be of substantial assistance to the defence in the present case? If the answer is in the affirmative, it will usually be appropriate to order disclosure. I put the matter in that qualified fashion, because in each case it is also necessary to consider, in a qualitative fashion, the strength of the public interest in non-disclosure.
[5] [2001] 87 SASR 448 at [33].
In that case Doyle, CJ was considering a case where disclosure was sought by the applicant in respect of a criminal trial in which he was defendant, not a civil trial as here.
In the same case Perry, J set out some general principles to be followed in considering a claim for immunity from production of documents based on public interest immunity.
I will first make some general observations as to the principles pursuant to which a claim for public interest immunity falls to be determined.
1.An objection based on public interest immunity may be taken on the basis that it would be against the public interest to disclose the contents of a particular document, or because the document in question belongs to a class of documents which ought not to be disclosed, irrespective of the contents.
2.It is unnecessary for present purposes to express a view as to whether or not the so-called “class” immunity is confined to documents which relate to the “framing of government policy at a higher level”. It should, however, be noted that even in the case of documents the subject of “class” immunity, the immunity is not absolute and disclosure may be ordered if the public interest so requires.
3.It has been recognised since at least the 18^th century that evidence disclosing the identity of police informers may be the subject of a claim for privilege. As it was put by Eyre LCJ:
“It is perfectly right that all opportunities should be given to discuss the truth of the evidence given against a prisoner; but there is a rule which has universally obtained on account of its importance to the public for the detection of crimes, that those persons who are the channel by means of which that detection is made, should not be unnecessarily disclosed: if it can be made appear that really and truly it is necessary to the investigation of the truth of the case that the name of the person should be disclosed, I should be very unwilling to stop it, but it does not appear to me that it is within the ordinary course to do it. ......”
4.Although there have been differing views expressed on the matter, in my opinion, the better view is that the so-called police informer privilege is part of the doctrine of public interest immunity. That view is supported by the observations of McHugh JA, as he then was, in Cain v Glass (No 2) and by the approach adopted by Priestley JA in the same case. Counsel for all parties in this case did not challenge that approach.
5.Whether the immunity applies to a particular document for which police informer immunity is claimed, depends upon its contents and not upon its characterisation as part of a class of documents.
6.Although a claim for public interest immunity may be raised by any party to the proceedings, it is not a claim inter partes, and may be raised by any person, whether a party to the proceedings or not, or the court may raise the question of its own initiative.
7.In all cases where the question of public interest immunity arises, it is for the court and not for the executive government to determine whether or not the immunity exists and should be enforced.
8.In determining a claim of public interest immunity, the court undertakes a balancing exercise, weighing on the one hand the asserted public interest against disclosure against the public interest in ensuring that the court has access to all relevant evidence. As it was put by Gibbs CJ in Alister v The Queen:
“Sankey v Whitlam establishes that when one party to litigation seeks production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - that is when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and on the other hand that there are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.”
9.It is desirable, but not essential, that a claim of public interest immunity should be supported by an affidavit or certificate of the Minister concerned, or a senior public servant, although neither an affidavit nor a certificate is to be regarded as concluding the issue.
10.When a claim for public interest immunity is raised, the judge may inspect the documents sought to be protected. In this case, all parties consent to inspection if the court wishes to do so.
11.Confidentiality is not a separate head of immunity, but it may be a material consideration to take into account in dealing with a claim of public interest immunity.
12.A claim for public interest immunity may be raised in the course of the preliminary examination of a charge of an indictable offence.

The competing relevant matters for consideration in performing the balancing act are as follows,
1. In support of non-disclosure.
The material was provided to the police by a phone call to a phone line held out to members of the public as an appropriate way to contact police.
Members of the public would be deterred from providing useful information to the police if they were in danger of having their identity revealed.[6]
The receipt of information in this manner is a time honoured and very important way for the police to receive information to help in the investigation of crime.
The information is only relevant to a civil claim for $15000, a small matter when weighed against the potential harm to the practice of police receiving information from secret informers.
2.In support of disclosure.
The applicant needs the information in order to advance proposed civil proceedings in defamation and would be unable to advance that case without the relevant information.
[6] See affidavit Sean Healy at paragraph 10.
In my view the well-known principle of confidentiality in relation to members of the public reporting to the police is crucially important and it would have significant harmful consequences in the administration of justice if the principle were to be downgraded.
Further, the proposed proceedings are civil proceedings not criminal proceedings and they relate to a relatively modest monetary amount of $15000.
The principle of confidentiality could easily be undermined in any case by the mere device of purporting to issue relevant civil proceedings and thus seeking information as to the identity of the informer in respect of any criminal matters.
In performing the balancing act I have no doubt that the Magistrate arrived at the correct decision in holding that the document which would be produced in response to the claim for discovery is subject to public interest immunity.
Accordingly I would uphold the decision of the learned Magistrate.