Marshall v Gunasti

[2009] NSWSC 838

CITATION:	Marshall v Gunasti [2009] NSWSC 838
HEARING DATE(S):	3, 4, 5, 6, 7, 10, 11 & 13 August 2009
JUDGMENT DATE :	20 August 2009
JUDGMENT OF:	Davies J
DECISION:	The Defendant is to pay fifty per cent of the Commissioner of Police’s costs in respect of the Notice of Motion filed 2 June 2009.
CATCHWORDS:	PROCEDURE - costs - costs of Notice of Motion to set aside subpoena - subpoena required production of some documents statutorily protected from production - Notice of Motion drawn too widely - some documents which legitimately required to be produced under subpoena - apportionment of costs of the Notice of Motion.
LEGISLATION CITED:	Police Act 1990 Uniform Civil Procedure Rules 2005
PARTIES:	Chrissie Joy Marshall (Plaintiff) Erkan Gunasti (Defendant)
FILE NUMBER(S):	SC 08/20404
COUNSEL:	Mr G Doherty (Commissioner of Police) Mr W Fitzsimmons (Defendant)
SOLICITORS:	Crown Solicitor's Office (Commissioner of Police) Sparke Helmore (Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

THURSDAY 20 AUGUST 2009

08/20404 CHRISSIE JOY MARSHALL V ERKAN GUNASTI

JUDGMENT

1 On 30 October 2008 the Defendant issued a subpoena to produce addressed to the Commissioner of Police. The subpoena required the production of seven categories of documents, four of which were not in dispute.

2 The three categories in dispute were these:

“2. All documents relating to complaints of corruption in the New South Wales Police made by Mrs Chrissie Marshall.

3. All documents relating to complaints of discrimination and/or victimisation of Mrs Chrissie Marshall by members of the New South Wales Police, including the New South Wales Police Aboriginal Counsel (sic) and New South Wales Police Service Koori Support Network.

4. All documents relating to the subsequent investigation of these claims of discrimination and/or victimisation.”

3 On 2 December 2008 Lucy Pinnock from the Crown Solicitor’s Office rang the Defendant’s solicitor, Mr Carl Newton, and said words to the following effect:

“The Commissioner of Police will not produce any documents that fall within Part 8A of the Police Act 1990. The entirety of the complaint filed, other than the complaint itself, is inadmissible in these proceedings pursuant to s 170(1) of the Police Act and Rule 1.9 of the Uniform Civil Procedure Rules 2005 provides that the documents need not be produced until the objection is overruled, because inadmissible documents are defined as privileged…

Any complaint made by Ms Marshall will not necessarily relate to conduct against her. A complaint can be made as a witness to an event, in which case there will be no legitimate forensic purpose for obtaining the complaint filed in these proceedings.”

4 On 8 December 2008 Ms Pinnock sent a letter to Mr Newton referring to the telephone conversation and setting out in greater detail with reference to some case law the basis for the Commissioner’s objections to answering paragraphs 2-4 of the subpoena. The letter also said this:

“If paragraph 2 is narrowed to only require production of ‘all complaints of corruption in the New South Wales Police made by Mrs Chrissie Marshall’, the Commissioner of Police will produce such documents subject to being satisfied that there is a legitimate forensic purpose for your request. I note my request above for a copy of the Statement of Claim in order that I may advise my client as to this issue.”

5 There was then some further correspondence and discussions between the solicitors, but on 9 April 2009 the solicitors for the Defendant wrote to the Crown Solicitor’s Office saying that they pressed for urgent production of paragraphs 2-4 of the subpoena.

6 Ms Pinnock then wrote saying that she anticipated receiving instructions to file a Notice of Motion to set aside those paragraphs. But on 29 April 2009 she received another letter dated 24 April 2009 from the Defendant’s solicitor pressing for production.

7 On 2 June 2009 the Commissioner filed a Notice of Motion seeking orders:

1. Paragraphs 2-4 of the Schedule to subpoena issued to the Commissioner of Police by the Defendant be set aside.

2. The Defendant pay the Commissioner of Police’s costs of the Notice of Motion.

8 The Notice of Motion was ultimately stood over to the first day of the hearing of the proceedings before me. On that day I was told that there were negotiations taking place but an Amended Notice of Motion was filed in Court with leave which added the following paragraph:

“That the Commissioner of Police be excused pursuant to Part 1 Rule 1.9 of the Uniform Civil Procedure Rules 2005 from producing those documents or parts of documents caught by paragraphs 2-4 of the schedule to the subpoena that the Commissioner identifies as being documents brought into existence for the purposes of the investigation of a complaint under Part 8A of the Police Act 1990.”

9 The Notice of Motion was thereafter stood over whilst discussions were continuing until it finally came before me on Thursday, 13 August 2009 to argue the issue of costs. The need to determine the substantive issues on the Notice of Motion had been obviated because on the seventh day of the hearing the Plaintiff was given leave to discontinue her claim.

10 Section 170 of the Police Act 1990 falls within Part 8A which deals with complaints about conduct of police officers. The section relevantly provides:

“(1) A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings:

(a) that concern the conduct of police officers, and
(b) that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action.
(2) Subsection (1) does not apply to or in respect of:

(a) a document comprising a complaint, or
…
(c) a document that a witness is willing to produce.

…”

11 The prima facie position was, therefore, that for the proceedings I was hearing the only documents brought into existence for the purposes of that Part that were admissible were the documents comprising the complaint itself and any document that a witness in the case was willing to produce.

12 Rule 1.9 UCPR relevantly provides:

“(1) This rule applies in the following circumstances:

(a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer,
…

(3) A person may object to producing a document on the ground that the document is a privileged document …”

13 A “privileged document” is defined in the UCPR Dictionary as meaning “a document that contains privileged information”, and “privileged information” is defined as meaning (inter alia):

“(h) information:

(i) the disclosure of the contents of which, or
(ii) the production of which, or
(iii) the admission or use of which,

in the proceedings would be contrary to any Act …”

14 The result of the discussions between the parties was that the Commissioner produced two classes of documents in answer to the subpoena. The first class consisted of complaints made by the Plaintiff to the Commissioner and the second class contained documents passing between the Plaintiff, the Commissioner and the Minister’s Office concerning complaints. The Commissioner determined to produce the second class of documents as a result of being satisfied that there was a legitimate forensic purpose being established in relation to them. That came first from the reading of a report from one of the Plaintiff’s treating psychiatrists, Dr Neil Phillips, and from discussions between counsel in relation to that report and the use of the documents.

15 The Commissioner’s argument, in short, is that the subpoena was couched too widely and that the Commissioner could never be required to produce all of the documents referred to in paragraphs 2-4 of the subpoena. However, it was always the case that complaints themselves were excluded from the prohibition in s 170. That appears to have led the Commissioner to file the Amended Notice of Motion which appeared to acknowledge that the original Notice of Motion filed by the Commissioner was drawn too broadly.

16 Mr Fitzsimmons (who appeared for the Defendant) told me, and I accept, that on the return date of the Notice of Motion (23 June) he pointed out to those appearing for the Commissioner that the Commissioner would clearly be obliged to produce some documents, namely the complaints themselves, and in that way the Notice of Motion to set aside the subpoena was drawn too widely.

17 The other way documents would be able to be produced, notwithstanding the limitations of s 170, would be if there were documents that a witness was willing to produce. Mr Fitzsimmons told me that that was another point that was made to those appearing for the Commissioner on the first return date. Whilst I accept that that occurred, it is unfortunate that the solicitors for the Defendant did not follow those matters up in writing. The letter from the Defendant’s solicitors that followed the return date was the letter of 26 June 2009. It makes no reference to the matters discussed at the return date but simply referred to the Crown Solicitor’s letter of 23 June and said the Defendant did not press for further production of documents sought in paragraphs 6 and 7 of the subpoena.

18 It is not clear why the Notice of Motion was not amended until 3 August 2009 although it seems clear that discussions were ongoing about the production of the documents required by the subpoena and Mr Doherty (who appeared for the Commissioner) recognised fairly quickly after he came into the matter (shortly before the commencement of the hearing) that the Notice of Motion was itself couched too widely.

19 Despite that, it seems to me that the Commissioner was justified in filing a Notice of Motion. After receipt of the subpoena, which on its face was couched too widely in the light of s 170, the Crown Solicitor endeavoured to point out the problems to the Defendant’s solicitors both by telephone and in writing. The letter of 8 December 2008 is detailed in its reasoning and in its reference to authority that tended to support the Commissioner’s position. Despite that, the Defendant continued to press for the production of documents in accordance with the subpoena.

20 I do not think it is any sufficient answer for the Defendant to say that the Notice of Motion itself should have been limited in the way the Amended Notice of Motion was. Had the Notice of Motion in its original form been determined it would have been open to the Court to require the production of the complaint documents notwithstanding that the Motion sought to set aside the whole of paragraphs 2-4.

21 On the other hand, the Commissioner ultimately came to accept that his Notice of Motion was couched too widely and was also, on being satisfied that there was a legitimate forensic purpose, prepared to produce a further class of documents.

22 I do not consider it appropriate in the circumstances that each of the parties should pay their own costs of the Notice of Motion because it was always appropriate for the Commissioner, having tried to persuade the Defendant of the legal position, to file a Notice of Motion to set aside those paragraphs of the subpoena. It appears, however, that the issue may have been unnecessarily prolonged by the width of the Notice of Motion as ultimately came to be accepted by the filing of the Amended Notice of Motion. Further, the Defendant was ultimately able to achieve obtaining two classes of documents by the issue of the subpoena documents the Commissioner accepted should be produced.

23 In all the circumstances, I consider it would be appropriate to order the Defendant to pay fifty per cent of the Commissioner’s costs of the Notice of Motion.

24 The Order of the Court is:

(1) The Defendant is to pay fifty per cent of the Commissioner of Police’s costs in respect of the Notice of Motion filed 2 June 2009.

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