JA v State of New South Wales (New South Wales Police) (No 2)

[2004] NSWADT 76

CITATION:	JA v State of New South Wales (New South Wales Police) (No 2) [2004] NSWADT 76 revised - 21/04/2004
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT JA RESPONDENT State of New South Wales (New South Wales Police)
FILE NUMBER:	021075
HEARING DATES:	2/04/2004
SUBMISSIONS CLOSED:	04/07/2004
DATE OF DECISION:	04/19/2004
BEFORE:	Hennessy N - Magistrate (Deputy President); McDonald O - Non Judicial Member; Mooney L - Non Judicial Member
APPLICATION:	summons - access to documents produced
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Freedom of Information Act 1989
CASES CITED:	Alister v The Queen (1984) 154 CLR 404 Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 Burmah Oil Co v Bank of England [1980] AC 1090 National Employers’ Mutual General v Waind and Hill [1978] 1 NSWLR 372 R v Saleam (1989) 16 NSWLR 14 Sankey v Whitlam (1978) 142 CLR 1
REPRESENTATION:	APPLICANT In person RESPONDENT H Bell, solicitor
ORDERS:	1. In relation to all the documents to which JA has been given access, but with some text deleted, JA is to be given photocopy access to a full copy of each of those documents.; 2. JA to be given photocopy access to the hand written notes of an interview with Todd Blanch. ; 3. JA to be given photocopy access to the “traced call” documents with the names and addresses of the people identified in those documents deleted.

1 This is an interlocutory application concerning the production of documents summonsed by JA. The summons is addressed to the Commissioner of Police. JA’s substantive complaint under the Anti-Discrimination Act 1977 (AD Act) alleges discrimination on the ground of disability and/or presumed disability in the provision of goods and services. JA alleges that State of New South Wales (the respondent) is vicariously liable for the conduct of individual police officers pursuant to s 53 of the AD Act.

2 A summary of the alleged breaches of the AD Act was set out in a previous decision, JA v State of New South Wales [2003] NSWADT 272 at [9]:

There are essentially six matters about which he complains. In brief, they are:
1. police officers failed to properly investigate his allegation that a person assaulted him on 7 November 2000;

2. police officers failed to properly investigate his allegations of sexual harassment against staff at two cafes;

3. police officers failed to properly investigate allegations of harassing phone calls;

4. a police officer directed JA to leave a shopping centre because he was allegedly in breach of an Apprehended Violence Order (AVO);

5. a police officer stated in a report that he was “incoherent”; and

6. an AVO that JA obtained in relation to another person was allegedly not served on that person.

3 On 2 March 2004, pursuant to Practice Note Number 07, Summonses: Information about issuing summonses, the Tribunal gave JA permission to file a summons addressed to the respondent. In fact, the summons was addressed to the Commissioner of Police. Neither party raised that discrepancy as an issue or sought to argue that the documents were those of a stranger, rather than of a party to the proceedings. On 2 March 2004, the Registrar issued a summons to produce the following documents:

All documents in relation to an investigation by police of an alleged assault by Todd Blanch on JA on 7 November 2000.

All documents in relation to an investigation by police between 8 November 2000 and 11 October 2001 of alleged threatening phone calls made to JA’s home and mobile numbers (numbers to be provided).

4 The first request relates to allegation 1 set out above at [2] that on 7 November 2000 JA was assaulted by a group of males at the Brass Monkey Club in the Cronulla Mall. The second request relates to allegation 3 set out above at [2] about threatening phone calls made to JA.

5 At return dates on 12 March, 19 March and 26 March 2004, the respondent produced:

· material to which JA was given photocopy access;

· material with certain text deleted to which JA was given photocopy access; and

· material over which it claimed JA should not be given access.

6 At the hearing on 2 April 2004, the respondent produced further material to the Tribunal but opposed JA being given access to that material. The basis for the respondent’s objection to access to all the material was either that there was no legitimate forensic purpose in JA having access to the material or the material was subject to public interest immunity.

Legal principles

7 Legitimate forensic purpose. The overriding principle in relation to documents produced under summons is that access may be refused if the Tribunal is not satisfied that access is required for any legitimate forensic purpose. The Tribunal should allow documents to be inspected if they are apparently relevant or are on the subject matter of the litigation. It is not necessary that they be relevant in the sense that a document itself tends to prove or disprove a fact in issue. (See R v Saleam (1989) 16 NSWLR 14). As long as it is "on the cards" that the documents relate to issues in the case, those documents should be produced. (Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667.)

8 Public interest immunity. Even if documents were relevant, the Tribunal would not order their production if it would, on balance, not be in the public interest to do so. In accordance with the principles enunciated by Gibbs CJ in Alister v The Queen (1984) 154 CLR 404 at 412, the question of whether public interest immunity applies requires the Tribunal to balance the public interest questions involved. In particular, the Tribunal must weigh up the competing public interests in the harm that might be done by production of the documents, and any frustration of or impairment to the administration of justice if the documents are withheld. (Attorney-General for NSW v Stuart (1994) 34 NSWLR 667 at 675F.)

9 A claim for public interest immunity can be made either in relation to a particular class of documents or on the basis of the content of particular documents. The difference between the two categories was explained by Lord Wilberforce in Burmah Oil Co v Bank of England [1980] AC 1090 at 1111: “... [The] distinction between them ... [is] that with a class claim it is immaterial whether the disclosure of the particular contents of particular documents would be injurious to the public interest - the point being that it is the maintenance of the immunity of the class from disclosure in litigation that is important; whereas in a contents claim the protection is claimed for particular contents in a particular document.”

Documents produced with some text deleted.

10 These documents are briefing notes, memoranda, note book entries, correspondence and records of interview prepared by police officers. They relate to the investigation of the alleged assault at the Brass Monkey, threatening phone calls made to JA and alleged non-service of Apprehended Violence Orders (AVO) . The deleted material is the names, addresses and telephone numbers of people who police officers contacted in the course of their investigations into JA’s allegations or who were named by others. JA consented to any addresses being blacked out, but submitted that the names of people be included in the documents produced to him. According to Mr Bell, this “police intelligence material” depends on secrecy for its ongoing effectiveness.

11 There is no doubt that these documents have a legitimate forensic purpose. JA’s case is that the respondent discriminated against him in relation to the manner in which it carried out certain investigations into allegations he made. The nature and extent of those investigations is central to JA’s case. The documents are “apparently relevant”. (National Employers’ Mutual General v Waind and Hill [1978] 1 NSWLR 372, per Moffitt P at 385.) They relate directly to the subject matter of the litigation.

12 In relation to public interest immunity, the respondent did not put on any evidence detailing the nature of the claimed immunity or whether it was a class or content claim. On that basis alone, it could be argued that the respondent’s claim must fail. However the Tribunal has an obligation, regardless of any application from the respondent, to prohibit access to documents which are immune from production because of public interest considerations. (Sankey v Whitlam (1978) 142 CLR 1) On that basis we will consider the issue of public interest immunity.

13 Because the documents in dispute are a collection of disparate material such as briefing notes, memoranda, note book entries, correspondence and records of interview they do not constitute a “class” of documents to which public interest immunity applies. In relation to a content claim, there are several possibilities. Information that revealed the identity of a confidential informant would almost certainly be immune from production. (See Cain v Glass (No 2) (1985) 3 NSWLR 230 at 247-248 per McHugh JA) However, there was no suggestion that any of the people identified in the documents were police informers. If disclosure of the material would prejudice any current police investigations, that fact may justify non-disclosure in the public interest. Mr Bell agreed that the investigations into matters raised by JA were now closed. If information was provided in confidence, that is a consideration to bear in mind. (Sankey v Whitlam (1978) 142 CLR 1) There was no suggestion that any of the information in issue in these proceedings was provided under an express or implied pledge of confidentiality.

14 In this case police were carrying out routine investigations into allegations that an offence had been committed. Apart from privacy considerations in disclosing the names, addresses and phone numbers of people who were contacted or identified in the course of the investigation, we were unable to identify any other relevant “public interest” in non-disclosure. The protection of an individual’s privacy is an important objective but it does not outweigh other considerations in favour of disclosure. Access to documents produced in answer to a summons are given to a specified party or parties. There are legal limits on the on the use of material obtained under summons. (Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 33, Home Office v Harman [1983] 1 AC 280.) A party who is granted access to documents is not entitled to use those documents other than for purposes connected with the proceedings. If a proper case is made out, the privacy of individuals can be protected by the Tribunal making an order as to the confidentiality of exhibits.

15 Consequently any harm that might be done by production of the documents is outweighed by the impairment to the administration of justice if the documents are withheld. Consequently JA is to be given access to the deleted portions of the documents and the respondent’s application in relation to those documents is dismissed.

Documents withheld in their entirety

16 Introduction. The two categories of documents withheld in their entirety were notes of a police interview with Todd Blanch and documents recording the phone numbers of people who had telephoned JA’s mobile phone during various periods. The respondent did not identify whether this was a class or content claim, but we have assumed that it is a content claim.

17 Notes of interview with Todd Blanch. Mr Bell explained that police officers had tape recorded an interview with Mr Blanch and that hand written notes of that interview had been produced in response to the summons. Mr Bell produced the hand written notes to the Tribunal but claimed either that they did not have a legitimate forensic purpose or they were subject to public interest immunity. Those notes had not been converted to a written statement. Based on the reasoning in [11] to [15] above we are not persuaded by the respondent’s submissions. The hand written notes have a legitimate forensic purpose and the public interest considerations which would justify their non-disclosure our outweighed by the impairment to the administration of justice if JA does not have access to those documents.

18 Traced calls. This document records the phone numbers of people who telephoned JA’s mobile phone number during the period 19 April 2001 to 29 April 2001. It also records the names of the person or people who were allegedly making harassing calls to JA. The second part of the document records the phone numbers of people who telephoned JA’s mobile phone number for the period 27 April 2001 to 10 May 2001.

19 According to Mr Bell, this document demonstrates that police officers made inquiries into JA’s allegations that he was receiving threatening phone calls. That concession supports our finding that they have a legitimate forensic purpose. In relation to public interest immunity, Mr Bell submitted that the record is police intelligence material and it is police policy and practice to protect the contact details of persons under investigation. No evidence was advanced in support of that proposition. In any case, while it is in the public interest that those people’s privacy is protected, as we have already noted, a party who is granted access to documents is not entitled to use those documents other than for purposes connected with the proceedings.

20 JA stated that he does not require the respondent to disclose the names or addresses of the people who telephoned him, but he is requesting that their phone numbers be disclosed. On that basis we grant JA access to those documents with the names and addresses of the people concerned deleted.

Failure to produce certain documents

21 Finally, JA submitted that the respondent had not produced to the Tribunal certain documents which fall within the description in the summons. The documents that JA maintains exist and that had still not been produced following the hearing on 2 April were:

· a tape of an interview with Mr Blanch on 7 November 2000;

· a full Printout of E11807318;

· a letter of Cronulla Plaza manager as stated in NSWP/D/2001/5094 and 11787 and 88674;

· a statement of Andre, a resident of Germany as stated in NSWP/D/159434;

· a statement from the Mr Wallace, Manager of the Brass Monkey

· a three page facsimile sent to Adam Johnson by JO Riordan; and

· documents evidencing charges laid in relation to the threatening phone calls.

Tape of interview with Mr Blanch

22 In relation to the tape, Mr Bell submitted that it did not come within the description of a “document” in the summons. JA maintained that it was a document and should be produced. While in most jurisdictions “things” such as tapes as well as documents are specifically included within the scope of a summons for production (Carter, G Subpoena Law and Practice in Australia, Blackstone Press Pty Ltd 1996 p 4) the word “document” is not defined in the Administrative Decisions Tribunal Act 1997 (ADT Act). As tapes are not specifically referred to in the summons, we cannot require its production. However, to avoid any further delay to the hearing of this matter that would be occasioned by a request from JA to issue a further summons, the respondent may be willing to provide a copy of the tape without the need for a formal summons.

Full Printout of E11807318

23 JA produced to the Tribunal a copy of this printout which he had obtained from NSW Police under the Freedom of Information Act 1989. (FOI Act) He submitted that the document in his possession is a complete, three page document (albeit with certain deletions) while the document produced to him under summons has only one page. Mr Bell submitted that the version produced pursuant to the summons was a photo-reduced version designed to place all relevant material on one page. The only changes made to the document were the deletion of names and addresses of individuals.

24 Having inspected the documents the Tribunal finds that the documents are slightly different versions of the same data entry. For example, the document obtained by JA under the FOI Act states, next to the heading “”Event Clear up status/date” : “No further investigation – 03/05/2001”. The document produced as a result of the summons has the words “Cleared – 12/09/2001 beside that heading. In our view, the documents are the same except they have been printed out at different times and consequently contain slightly different information. The document produced under summons has not been “doctored” as claimed by JA, it has merely been photo-reduced. On that basis we are satisfied that the respondent has produced the relevant document in response to the summons. In conformity with the orders we have made in relation to the document from which text was deleted, JA is to be given access to the Printout of E11807318 without deletions.

Letter from Cronulla Plaza Manager

25 In an edited document to which JA was given access, the following words appear: “.(name deleted), the Plaza Manager of Cronulla Mall and employee of Sutherland Shire Council has written an official letter in support of (name deleted) in relation to AVO hearings.” The respondent did not produce a letter from the Cronulla Plaza Manager. Mr Bell said that his instructions were that the respondent does not hold that letter.

26 We are satisfied that the respondent does not hold a letter from the Cronulla Plaza Manager. In any event, it is difficult to see what legitimate forensic purpose such a letter would have in relation to JA’s substantive claim.

Statement of Andre

27 In an edited document to which JA was given access, the following words appear: “(name deleted) is a resident of Germany and originally supplied a statement via email to Senior Constable Sheehan where he was unable to describe or identify any person/s involved in the alleged assault.” Following the hearing on 2 April 2004, Mr Bell stated that the only documentation held by the respondent in relation to Andre is a copy of an e-mail which Andre sent to JA and which JA later provided to the respondent. A copy of that email was produced in response to the summons but the name and email address of the person sending the email (other than the word “Andre”) and part of one sentence in the body of the email was deleted. Mr Bell has no objection to that document being made available in full to JA.

28 On the basis of the respondent’s concession in relation to this document we order that JA be given photocopy access to an unexpurgated copy of the email from Andre to JA dated 15 May 2001. We accept the respondent’s assurance that this is the only “statement” from Andre which it holds. In conformity with our previous orders, JA is to be given photocopy access to an unexpurgated copy of the email from Andre to JA dated 15 May 2001.

Statement from the Mr Wallace, Manager of the Brass Monkey

29 The respondent told the Tribunal that the Manager of the Brass Monkey did not give police officers a written statement. The only relevant records are contained at page 102 of Detective Sheehan’s notebook numbered F253890. That record has been produced and JA has been given access to it. No other documentation is held in relation to evidence from Mr Wallace. We accept the respondent’s assurance in relation to that matter.

Facsimile sent to Adam Johnson by JO Riordan

30 Mr Bell told the Tribunal that his instructions were that police officers had endeavoured to locate all material in response to the summons and if material was not produced it is because it could not be located. We accept the respondent’s assurance in relation to the facsimile referred to in the material produced.

Details of charges laid following investigation

31 No documents relating to the charging of any individual was produced in answer to the summons. JA maintained that documents relating to the charges, if any, fall within the request in the summons. Mr Bell submitted that they did not.

32 The summons only refers to the “investigation” of various matters. The laying of charges does not come within the ordinary meaning of an “investigation”. Consequently the respondent is not required to produce such documents in response to the summons. Again, to avoid any further delay to the hearing of this matter that would be occasioned by a request from JA to issue a further summons, the respondent may be willing to provide a copy of the relevant material without the need for a formal summons.

Decision Revised 21 April 2004 - Name of applicant anonymised paragraph 22