Lee v NSW Commissioner of Police (No.2)
[2019] NSWSC 684
•10 April 2019
Supreme Court
New South Wales
Medium Neutral Citation: Lee v NSW Commissioner of Police (No.2) [2019] NSWSC 684 Hearing dates: 27, 28, 29 March 2019, 10 April 2019 Date of orders: 10 April 2019 Decision date: 10 April 2019 Jurisdiction: Common Law Before: Garling J Decision: Direct that a Third Further Amended Summons, in a form consistent with this judgment, be filed by 4pm 10 April 2019.
Catchwords: CIVIL PROCEDURE – Summons – Application to amend second further amended summons Legislation Cited: Not applicable Cases Cited: Not applicable Texts Cited: Not applicable Category: Procedural and other rulings Parties: Denise Lee (P)
NSW Commissioner of Police (D1)
Megan Peebles (D2)
Stephen Lister (D3)
NSW Police Force (D4)Representation: Counsel:
Solicitors:
T A Game SC / B K Lim (P)
K Richardson SC / D Hume (D1, D2, D4)
Lenz Legal (P)
Makinson & d’Apice (D1, D2, D4)
Crown Solicitors Office (D3)
File Number(s): 2017/367939 Publication restriction: Not Applicable
EX TEMPORE Judgment (T.215)
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An application has been made by the plaintiff to make three amendments to the Second Further Amended Summons, so that the plaintiff would proceed on a Third Further Amended Summons.
First Proposed Amendment
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The first amendment which is sought is to paragraph 1(b)(v) where after the word "and" an "/or" is to be added. No objection is taken to this proposed amendment and the application to amend that paragraph is allowed.
Second Proposed Amendment
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The second amendment is in paragraph 6(d) to expand the circumstances surrounding the plaintiff's claim for client legal privilege, which are alleged to have not been disclosed to the third defendant to whom the application for the search warrant was made. Ground 6(d) also relies upon the fact that the third defendant failed to consider such circumstances. The plaintiff seeks to add “the undertaking given by Detective Cruikshank on 22 February 2017" as the third circumstance surrounding the plaintiff’s privilege claim.
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The application to amend paragraph 6(d) is made upon the basis that the relevance and fact of the undertaking was only made clear in the evidence arising from the cross-examination of Detective Cruikshank on the third day of these proceedings, being Thursday 28 March 2019.
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The context to that submission is that the second circumstance relied upon in paragraph 6(d) as requiring disclosure of client legal privilege, were the orders made by N Adams J in this Court in 2017. However, during the course of cross‑examination, Detective Cruikshank denied knowing the contents of those orders but indicated that she had proceeded on the basis of the undertaking with respect to accessing documents described in the evidence.
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Objection is taken to this amendment on the basis that, first, the applicant for the search warrant was in fact Detective Peebles, whose evidence preceded that of Detective Cruikshank. In the absence of any pleading of the relevance of this undertaking, the defendants submit that they had no opportunity to question Detective Peebles about her knowledge of the undertaking or the terms of it, and perhaps seeking an explanation from her as to why she did not disclose that circumstance. In this respect, the defendants point to the fact that the undertaking relied upon is said to have been given to the plaintiff's solicitor, Mr Dean Lenz, and accordingly, he would have known of it at all relevant times.
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The second basis upon which objection is taken is that, in truth, paragraph 6(d) raises a question of fraud and that such an allegation is not properly pleaded. It is further submitted that, in order for such a ground to succeed, it is necessary that the plaintiff demonstrate fraud. The plaintiff does not agree, as a matter of substance, that the allegation is one of fraud, nor does the plaintiff agree that it is necessary for her to prove that the circumstances constituted a fraud.
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It seems to me that it is too early to give a concluded judgment on the role of fraud in the pleading of paragraph 6(d). It is either pleaded or it isn't. The addition of one further event to the circumstances requiring disclosure of client legal privilege will not place either party in any different position with respect to the substantive argument as to whether fraud is required, and if so, whether it's properly pleaded. Accordingly, I put this ground of objection to one side.
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The third basis for the objection is that, properly understood, there is in the evidence in cross examination of Detective Cruikshank, upon which reliance is based, a significant degree of ambiguity which, had this allegation been known, would have led to re-examination of Detective Cruikshank to address that apparent ambiguity. Accordingly, the timing of the application for the amendment denies to the defendants the opportunity of that re-examination and they are prejudiced. In response to that submission, the plaintiff submits that the evidence with respect to the undertaking may well be relevant to other allegations and that a decision to re-examine would have been no different even if this matter was pleaded.
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This application is made at a very late time in these proceedings. The existence of the undertaking given by Detective Cruikshank on 22 February 2017, as described in the proposed pleading, is apt to cover the agreement reached between Mr Lenz and the detectives with respect to these documents in February 2017 and also anything stated on that topic in the telephone conversations between Mr Lenz and Detective Cruikshank at about that time. Had it been thought that these were matters of importance and circumstances material to be disclosed to the third defendant, then they were known to the plaintiff at least from February 2017, and ought to have been included in the Second Further Amended Summons well before now.
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I do not accept that the terms of Detective Cruikshank’s evidence first made the relevance of this allegation obvious. In addition, I am satisfied that, had this pleading been contained in the summons at the time Detective Cruikshank was cross examined, in all probability senior counsel for the defendants would have undertaken a re-examination of Detective Cruikshank to address any obvious ambiguities in her evidence. I am satisfied that the inability to re-examine Detective Cruikshank is a matter of prejudice. Because this proposed pleading comes too late and causes prejudice, I will not allow it.
Third Proposed Amendment
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The final amendment which is proposed is that at the end of paragraph 6(h), the words, "and the warrant should therefore be quashed" be deleted. The effect of this deletion would be that the relief open to the Court to be granted, if grounds 6(g) and 6(h) were established, would not be limited to the quashing of the warrant. Objection was taken to this amendment on the basis that there may be evidence which the defendants may wish to adduce, depending on the findings of the Court, which may relate to the nature of the relief to be granted with respect to grounds 6(g) and (h).
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It seems to me that such prejudice can be addressed if, depending upon the judgment delivered by the Court and the relief considered to be established, the defendants were given an opportunity to call evidence (following successful submissions articulating what evidence they would wish to call and its relevance to any relief). No objection is taken to that course being followed. It is a procedural one and it can remedy any possible prejudice.
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In those circumstances, I would permit the proposed amendment to be made to paragraph 6(h).
Order
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I direct that a Third Further Amended Summons, in a form consistent with this judgment, be filed by 4pm today.
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Decision last updated: 11 June 2019
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