Justelle Nominees Pty Ltd v Martin [No 2] - [2009] WASC 15

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: JUSTELLE NOMINEES PTY LTD -v- MARTIN [No 2] [2009] WASC 15

CORAM: SIMMONDS J

HEARD: 15 JANUARY 2009

DELIVERED : 15 JANUARY 2009

FILE NO/S: CIV 1861 of 2006

BETWEEN: JUSTELLE NOMINEES PTY LTD
Plaintiff
AND
GAVIN WILLIAM MARTIN
First Defendant
NATALIE MARTIN
Second Defendant

Catchwords:

Subpoena - Object to produce documents - Statutory prohibition on producing a document in any court - Whether production under a subpoena covered by exception for disclosure of information to authority that may require the information for the purpose of discharge of duties of a public nature

Legislation:

Liquor Control Act 1988 (WA), s 151, s 152
Rules of the Supreme Court 1971 (WA), O 26B r 4

Result:

Objection upheld

Category: B

Representation:

Counsel:

Plaintiff:    Mr D J Morris
First Defendant          :    No appearance
Second Defendant          :    No appearance
Objector
Director of Liquor Licensing      :    Mr H Leith

Solicitors:

Plaintiff:    Bruce Havilah & Associates
First Defendant          :    No appearance
Second Defendant          :    No appearance
Objector
Director of Liquor Licensing      :    State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1
Hutchins v Federal Commissioner of Taxation (1986) 86 ATC 4549

SIMMONDS J: (This judgment was delivered extemporaneously and has been edited from the transcript). I have considered this application which is a chamber summons for orders under O 36B r 4 of the Rules of the Supreme Court 1971 (WA) to set aside a subpoena issued for the plaintiff to the Director of Liquor Licensing, the application supported by an affidavit of Mr Darryl McLaughlin sworn on 14 January 2009. I have concluded that I should grant the application and I have concluded that I should do so broadly on the grounds submitted to me, both in writing and orally, by counsel for the Director of Liquor Licensing.
I should note that it is not in dispute that the Director of Liquor Licensing is the appropriate person both to bring this application and to respond to the subpoena, and that there is no issue taken with that person as a person as referred to in the provisions which found my grant of the application. Those provisions are in the relevant legislation, the Liquor Control Act 1988 (WA), and those provisions are s 152, particularly s 152(1)(b), and s 151. I reproduce those provisions in full:
151. Authority may assist other authorities
The licensing authority may disclose information gained in the course of the administration of this Act to ‑
(a)authorities vested with the administration of liquor licensing laws in other States and Territories of the Commonwealth; and
(b)any other authorities that may require the information for the purpose of discharging duties of a public nature,
respecting the affairs of any persons or the administration of this Act.
152. Obligation of secrecy
(1)Any person who is or has been employed in the administration of this Act, shall not while that person is, or after that person ceases to be, so employed ‑
(a)either directly or indirectly, except in the performance of a function in relation to this Act or in accordance with section 151, make a record of, or divulge or communicate to any other person any information disclosed or obtained by reason of this Act respecting the affairs of any other person; or
(b)produce in any court or to any other person, or permit any other person to have access to, a document that is, in the course of being so employed, in the custody of that person,
except for the purpose of any proceedings for an offence under this Act, or where it is otherwise necessary to do so for the purpose of carrying into effect the provisions of this Act.
(2)A person who contravenes subsection (1) commits an offence.
Penalty: $5 000.
I emphasise, as counsel for the plaintiff who had arranged for the issue of the subpoena, the word 'in' in s 152(1)(b) and it is also necessary that I take account of s 152(1)(a).
Section 151 was the provision upon which counsel for the respondent laid particular emphasis. In his submission s 151 came in either through the concluding words to s 152(1) or as an exception to the reach of s 152 (1)(b).
I should immediately note that s 151 on its face appears to be a discretionary provision, vesting that discretion in the licensing authority itself, and does not, it seems to me, to be apt, on its face at least, to relate to compulsory process such as a subpoena for the provision of a document or indeed the disclosure of information.
I should also add that it is included in the subpoena, the subject of the proceedings here today, that the officer concerned is called to give evidence. It was a concession that I understood to have been made in the hearing that the only evidence that was intended to be the subject of the subpoena was evidence concerning the documents themselves, and therefore, if the subpoena failed as to the documents, the subpoena had no purpose to serve with respect to the oral evidence.
I also note that there is no question raised with me, as appears to be common ground, that the documents are ones of a sort referred to in s 152(1)(b).
Returning then to s 151 and putting aside the point that I have just made about that provision, it seems to me that there is a further and, in my view, insuperable difficulty in meeting the objection to production with that provision. Section 151 is directed to disclosure of information to 'authorities'. The court, it seems to me, is not an authority within s 151(b). Section 151 read in whole appears to me to be directed to exchange of information ‑ perhaps it may be only a one way provision; there may indeed be something other than an exchange which induces the disclosure s 151 refers to ‑ to administrative authorities being either similar authorities to that administering the Liquor Control Act or such authorities requiring the information for the purpose of discharging duties of a public nature.
I do not doubt that a court in issuing a subpoena and in receiving the matters the subpoena refers to is discharging duties of a public nature in both senses; that is to say, they are duties performed publicly but they are also duties of public interest; being the interest in the administration of justice.
I further assume that in administering the issuance of subpoenas courts are receiving documents or allowing for the provision of evidence of a sort that might reasonably be expected, subject to views formed by the parties when they have had the opportunity to review the contents of the documents concerned, to be of assistance to the administration of justice in the sense of resolving the issues and controversy between parties that have brought them before the court. However, those considerations do not, it seems to me, resolve the constructional issue of whether a court is an authority within the meaning of s 151.
It seems to me that consistently with authorities on whether a court is a person within the language of that general kind, such as Hutchins v Federal Commissioner of Taxation (1986) 86 ATC 4549 and Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 at (6) (Dixon CJ exercising the original jurisdiction of the High Court confirmed on appeal), (10) (McTiernan J), (10) (William J) and (11) (Kitto J), that it would be difficult to argue that a court is an authority.
The point becomes, I believe, even clearer, however, when account is taken of s 151(1)(b). If 'authorities' is read as counsel for the respondent would have me read it, the scope for s 152(1)(b), it seems to me, would largely disappear.
I accept that there is a difference between 'produce to any court' and the language actually used in s 151(1)(b) 'produce in any court'. In my view, s 152(1) does not prevent a court examining a document to make any determination that is appropriate for the purpose of proceedings before it. However, it seems to me that production under a subpoena clearly answers the description 'produce in any court', not least because the production is for the purposes of the document being inspected by the party seeking the subpoena and conceivably the other party as well, whether or not any subsequent use of that document is the subject of a suppression order as to the proceedings in which that document is adduced into evidence or sought to be adduced into evidence and any reference to it in subsequent judicial reasons.
It therefore appears to me that there is not the basis relied upon by counsel for the respondent for the conclusion that s 151 is the answer to the objection to produce the document relied upon by the applicant by reference to s 152(1)(b).
In the hearing it was said to me by counsel for the respondent that the parties, or at least the plaintiff, had seen the documents sought under the subpoena. It does not appear to me, at first blush at least, that this necessarily has any bearing on the question before me. I note again the language at the end of s 152(1):
… except for the purpose of any proceedings for an offence under this Act [which does not apply here] or where it is otherwise necessary to do so for the purpose of carrying into effect the provisions of this Act.
I do not know whether there are provisions in the Act that allow for information sharing with a private party of the kind that has led to the document being in the hands of that private party. Therefore, I cannot conclude that there is any indication to be drawn from what counsel for the respondent told me that s 152(1)(b) should be read as he would commend to me in light of s 151 read as he would commend to me.
It follows therefore that I would grant the application made by the Director.