McMaster v State of NSW; Karakizos v State of NSW; Karakizos v State of NSW

[2012] NSWDC 108

District Court

New South Wales

Medium Neutral Citation:

McMaster v State of NSW; Karakizos v State of NSW; Karakizos v State of NSW [2012] NSWDC 108

Hearing dates:

29/5/2012

Decision date:

27 July 2012

Before:

P Taylor SC DCJ

Decision:

In each proceedings:

1. Order that the proceedings Karakizos v State of NSW (2012/27695), McMaster v State of NSW (2012/4882) and Karakizos v State of NSW (2012/27725) be heard together, with evidence in any proceedings to be evidence in all proceedings.

2. Vacate the order granting to the plaintiffs access to the documents referred to in Annexure A to the affidavit of Mark Woodhead sworn 23 April 2012 ("the subpoenaed documents").

3. Grant first access to the defendant to the subpoenaed documents to enable the defendant to put into a separate envelope marked "Accessible by plaintiffs' solicitors" those documents numbered 19, 21, 22, 23 and 24 in Annexure A.

4. Grant access to the plaintiffs' solicitors to those documents in the separate envelope on their undertaking not to provide a copy of any document to any plaintiff other than providing to each plaintiff a copy of their own statement or statements.

5. Otherwise dismiss the notices of motion.

6. Order the defendant to pay the plaintiffs' costs of and incidental to the notices of motion.

Catchwords:

PROCEDURE - application for a stay of proceedings during pendency of related criminal proceedings - application to restrict access to subpoenaed documents arising out of related criminal proceedings

Legislation Cited:

Civil Procedure Act 2005
Evidence Act 1995

Cases Cited:

Ainsworth v Hanrahan (1991) 25 NSWLR 155
Griffin v Sogelease Australia Limited [2002] NSWCA 421
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Jefferson Limited v Bhetcha [1979] 1 WLR 898
McMahon v Gould (1982) 7 ACLR 202
Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756; [1991] 3 All ER 878
Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16

Texts Cited:

Ritchie's Uniform Civil Procedure NSW

Category:

Interlocutory applications

Parties:

Justin McMaster (plaintiff)
Georgia Karakizos (plaintiff)
Kayla Karakizos (plaintiff)
State of New South Wales (defendant)

Representation:

Mr J C Sheller and Mr W R Potter (plaintiffs)
Mr P Saidi (defendant)
Greg Walsh & Co (plaintiffs)
Markinson & d'Alpice Lawyers (defendant)

File Number(s):

2012/4882; 2012/27695; 2012/27725

Publication restriction:

No

Judgment

A. Introduction

1. The defendant has applied for a stay of proceedings during the pendency of related criminal proceedings. It also seeks orders restricting access to documents arising out of those criminal proceedings.

B. Background

1. In the early hours of Monday, 26 September 2011, three persons ("the offenders") invaded the residence of the three plaintiffs at 4 Holmes Street, Colyton. The police were called. Two police officers attended. The plaintiffs allege that in an actionable assault and in breach of a duty of care, one of the plaintiffs, Mr McMaster, was shot in the abdomen by one of the police officers, in the presence of the other two plaintiffs.

1. No defence has yet been filed to the proceedings commenced by each of the plaintiffs. It does not appear to be in contest that Mr McMaster received personal injuries as a result of the incident.

1. Criminal proceedings have been commenced against the offenders. Those proceedings are expected to take at least 12 months to complete.

C. Notices of Motion

1. In each of the civil proceedings, the defendant has filed a notice of motion. The defendant seeks an order that the three proceedings be heard together with evidence in one proceeding to be evidence in the others. The plaintiffs consent to these orders and I will make the order sought.

1. In the McMaster proceedings, orders are also sought that all copies of documents produced on subpoena by the Director of Public Prosecutions ("DPP") be delivered to the DPP, and that the order granting access to the plaintiffs to the documents produced be revoked.

1. The defendant also complains about not having been served with a copy of the subpoena. Mr McMaster's submission accepts that this was an error due to oversight. In the circumstances which follow, I do not think this failure has any additional significance.

1. The plaintiffs' solicitor has sworn an affidavit deposing that the documents produced "have not been accessed, uplifted or copied by" the solicitor's firm or to his knowledge "any other person on behalf of the plaintiff", nor by anyone on behalf of the other plaintiffs. In those circumstances, there are no copies to return and an order to that effect is unnecessary. I do not propose to make it.

1. Mr Sheller, the plaintiffs' counsel, submitted that the plaintiffs are supportive of the criminal proceedings. He referred to disclosures made by the plaintiffs to their medical experts recorded in reports in evidence on this application. These circumstances disclosed by the plaintiffs would appear to give them good reason to be supportive of the criminal proceedings. Moreover, it is accepted by the plaintiffs that for witnesses to have access to other witnesses' statements could be prejudicial to the criminal proceedings, as this may impair the credibility of their evidence. The plaintiffs propose that either access to the documents produced by the DPP be limited to the legal advisors, or alternatively, that the access be limited to the plaintiffs' own statements.

1. The defendant propounded no reason as to why each of the plaintiffs should not have access to their own statements. It was conceded that routinely a witness is provided with a copy of their statement prepared for criminal proceedings.

1. The defendant raised two further matters. The first is that Mr McMaster is alleged not to have yet given a formal statement to the police. I do not think anything turns on this in these proceedings. Any failure of Mr McMaster in that regard is not properly a matter to be ventilated on this application, nor I think, in these proceedings.

1. The second matter is that the defendant submitted that the parties to whom documents are disclosed in the course of proceedings have impliedly undertaken not to use those documents in other proceedings. I do not regard that proposition as controversial and neither did the plaintiff.

1. Ritchie's Uniform Civil Procedure NSW at [33.9.15] states:

[33.9.15] Implied and express undertakings Any inspection of subpoenaed documents carries with it an implied undertaking to use the documents, or information contained in them, only for purposes directly connected with the conduct of the litigation: see annotations to UCPR r 21.5. In order to complement that implication, where documents are inspected in the court registry, it is common to require the person inspecting the documents to provide a written undertaking in terms similar to the following:

"Except with the leave of the court I will not otherwise than for the purpose of the proceedings mentioned beside my signature, divulge, communicate or refer to any person any information obtained from inspection of any document or thing produced by the court to me or a copy of any document or thing so produced to and inspected by me, unless it is admitted into evidence in the proceedings."

1. The area of controversy concerned the application of that principle to the present case. The defendant contended that the witnesses had provided statements for the purpose of the criminal proceedings and that, therefore, the statements could not be accessed in these proceedings.

1. The effect of this submission is that it would be a good answer to a subpoena seeking documents, that the documents were created, or provided, for the purpose of another proceeding, and therefore cannot be accessed in the instant proceeding.

1. No authority was cited in support of this proposition.

1. I should note that no claim for privilege has been advanced in these proceedings.

1. In my view, the defendant's argument is misconceived. Indeed, the converse seems to me to be correct. Documents produced on a subpoena issued in these proceedings, or pursuant to discovery in these proceedings, become subject to the signed undertaking in these proceedings. Generally speaking, those documents cannot be used for any purpose extraneous to these proceedings, including use in other proceedings or for purposes unconnected with the legal proceedings. It is for this reason that documents utilized in other proceedings cannot be used in these proceedings without the proper process of subpoena or discovery. By utilizing the regimes of subpoena or discovery, the court in control of the proceedings properly has control over the ambit of documents produced, and the access granted to those documents.

1. The court's power to require production of documents to do justice in a particular case is not to be circumscribed by the mere fact that a party created the document for other proceedings. That alone is not sufficient to place the document beyond the reach of judicial process. Even statutory prohibitions against disclosure are not generally sufficient to prevent orders for production and inspection in legal proceedings: Ritchie's Uniform Civil Procedure NSW at [33.4.35].

1. 18 The defendant referred to Hearne v Street (2008) 235 CLR 125; [2008] HCA 36. As the headnote records:

"...the "implied undertaking" not to use documents or information filed in court for a purpose unrelated to the conduct of proceedings was a substantive obligation which arose by virtue of the circumstances under which the relevant person obtained the documents or information."

1. This passage is derived from [108] of the decision, where the Court approved the remarks of Hobhouse J in Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 775; [1991] 3 All ER 878 at 895.

1. In the present case, the documents were produced pursuant to a subpoena in these proceedings. The "implied undertaking" rule precludes the actual documents produced being used for some purpose other than for the purposes of these proceedings. The rule is the same for affidavits and expert reports: Hearne; documents obtained through discovery: Harman v Secretary of State for the Home Department [1983] 1 AC 280; and interrogatories: Ainsworth v Hanrahan (1991) 25 NSWLR 155.

1. Nothing I say should be taken to determine the ambit of the documents that the plaintiffs may ultimately be entitled to access, and whether some regime, such as limiting access to legal advisors, might be appropriate in the future. It is sufficient that I find that in the present circumstances as a result of the plaintiffs' willingness to limit access to their statements, I propose to vary the access order to allow the plaintiffs' solicitors to access any statement of the plaintiffs, on their undertaking to provide no copies of those statements to any witness other than providing to each plaintiff a copy of their own statement or statements.

1. The third issue between the parties concerned whether the proceedings should be stayed.

1. There is no longer, if there ever was, a rule that civil proceedings should be stayed whilst related criminal proceedings are pending. In Griffin vSogelease Australia Limited [2002] NSWCA 421, the Court of Appeal adopted with approval the remarks of Megaw LJ, with whom Brandon J agreed, in JeffersonLimited v Bhetcha (1979) 1 WLR 898:

"There is, I say again, in my judgment, no principle of law that a plaintiff in a civil action is to be debarred from pursuing that action in accordance with the normal rules for the conduct of civil actions merely because so to do would, or might, result in the defendant, if he wished to defend the action, having to disclose, by an affidavit under Order 14, or in the pleading of his defence, or by way of discovery or otherwise what his defence is or may be, in whole or in part, with the result that he might be giving an indication of what his defence was likely to be in the contemporaneous criminal proceedings. The protection which is at present given to one facing a criminal charge - the so-called "right of silence" - does not extend to give the defendant as a matter of right the same protection in contemporaneous civil proceedings."

1. The rule was succinctly stated by Sugarman CJ, with whom Holmes and Mason JJA agreed, in Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19:

"...the fundamental principle that a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court, subject only to an exercise of judicial discretion on proper grounds as part of the court's inherent powers..."

1. The defendant relies upon several matters to justify a stay.

1. First, it is submitted that "each of the accused in the criminal proceedings would be at risk in terms of self-incrimination in seeking to defend against themselves in these civil proceedings". I have already noted that this argument, of itself, is not compelling when presented by the accused. It has less force when presented by the defendant.

1. It is difficult to see how the criminal proceedings are prejudiced if the offenders choose to give evidence in the civil proceedings. Such evidence may be given under the protection of a certificate under s 128 of the Evidence Act 1995. But even if no certificate were to be given, the voluntary disclosure of the circumstances of the offence by the offenders is not prejudicial to the criminal proceedings, even if it may be perceived to be adverse to the interests of the offenders.

1. At this stage the offenders are not parties to proceedings, and I am not persuaded that it is likely that the defendant will cross-claim against them. Even if the defendant filed such cross-claims, it would be open to the court to postpone the hearing of such a cross-claim until after the criminal trial. Plainly enough, there is no necessity for the defendant to file cross-claims at this stage if it is concerned that the interests of justice are better served by the cross-claims being postponed.

1. Secondly, the defendant refers to Mr McMaster's failure to provide a formal police statement, and that Mr McMaster potentially has access to other witnesses' statements made in the criminal proceedings. I have already found the former matter to be irrelevant, and the later concern is removed, so far as it is practical and appropriate for the Court to do so, by the orders I propose to make in respect of access.

1. A number of other concerns are raised by the defendant in relation to witnesses accessing documents. Counsel for the defendant appeared to accept that there is no rule that precludes a witness from showing their witness statement, or recounting it, to another person. There are plainly limits on the measures that the Court can or should take to preclude witnesses discussing the matter. The orders I propose to make will not involve the Court in disclosing the evidence of one witness to another.

1. Thirdly, the defendant asserts:

"It would be contrary to the interests of justice for either Mr McMaster or the other plaintiffs to give priority to pursuing their own interests in the civil proceedings to the detriment of the criminal proceedings."

1. I do not accept this assertion. Mr McMaster is entitled to pursue his civil proceedings as the decisions of Griffin (at [12]) and Rochfort, referred to above, make plain. Nor do I accept that there is any likely "detriment to the criminal proceedings".

1. The defendant made assertions such as "the need to protect the integrity of the prosecution" and "the need to protect the integrity of the ongoing police investigation", without providing any coherent reason as to why this integrity will be compromised by court proceedings taking their ordinary course.

1. The defendant submits that the consolidation of the hearings will exacerbate the perceived problem. This is a peculiar submission to be made by a party applying to have the hearings combined. In any event, I am not deciding whether the civil hearing should precede the criminal hearing, but rather whether the proceedings should be stayed now, before the defendant has even filed a defence. I do not intend, and the plaintiffs do not seek, to preclude the defendant from making an application to have any civil hearing postponed until after the hearing of the criminal proceedings.

1. The defendant also asserts:

"Other concerns emerge when one considers that medical reports either have been or are being obtained for each of the Plaintiffs. This is another avenue of attack as to the integrity and reliability of evidence at a later criminal hearing."

1. I do not see how a plaintiff recounting to a medical expert the circumstances of the event causing the injury is prejudicial to a subsequent criminal trial. If the plaintiff's accounts happen to differ markedly, it may accurately indicate that the evidence is unreliable. Even were such disclosures to lessen the likelihood of a conviction, which does not appear likely in the present case, that is a different matter from interfering with a fair trial.

1. The submission also ignores the entitlement of a plaintiff, as a general rule, to pursue civil proceedings in the ordinary course. So also does the defendant's submission that:

"No cogent reason has been given by the Plaintiffs as to why it is necessary either for themselves personally or in the interests of justice for the civil proceedings to proceed first."

1. Finally, the defendant asserts that s 128 of the Evidence Act 2005, allowing the offenders to give evidence with the protection of a certificate precluding the use of that evidence in the criminal proceedings, does not adequately protect their interest. Views may differ on the extent of the protection offered by s 128, but at this stage the issue does not arise. If the issue ever does arise, it will be because the offenders have chosen to raise it.

1. The relevant criteria in deciding whether a stay should be granted are set out by Wootten J in McMahon v Gould (1982) 7 ACLR 202. Among the matters mentioned in that decision are that:

"i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings...;

(j) In this regard factors which may be relevant include:

(i) the possibility of publicity that might reach and influence jurors in the civil proceedings...;

(ii) the proximity of the criminal hearing...;

(iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses...

..."

1. It is premature to suppose that publicity might affect jurors at this early stage of the proceedings, particularly when the facts concerning the offenders do not appear to be likely to be matters of controversy in the current proceedings. As the plaintiffs submit, the criminal matter is related but not overlapping, since the plaintiffs' actions rely on an accident occurring after the alleged criminal conduct was complete. Any publicity would likely focus on the alleged shooting of Mr McMaster, but that is irrelevant to the guilt of the offenders.

1. As to the second factor, mentioned by Wootten J, there is no proximate criminal hearing, or civil hearing.

1. As to the third factor, there is no possibility, at this stage, of disclosure of a defence, since the offenders are not presently parties to these proceedings.

1. As I have indicated earlier, in my view, the cogency of the application is diminished by the fact that the offenders are not parties to the proceedings.

1. The defendant's evidence does not disclose "a real and not merely notional danger of injustice". It is insufficient to displace the plaintiffs' general entitlement to have their case heard.

1. It cannot be disputed that there is a public interest in having matters heard and determined expeditiously. Section 56 of the Civil Procedure Act 2005 is an example of a provision giving statutory recognition to this principle. It applies to those who have suffered personal injury, and, amongst the present plaintiffs, perhaps particularly to Mr McMaster who, according to the medical reports, has suffered a perforated bowel as a result of a gunshot wound, and underwent a laparotomy, resection of the small and large bowel, anastomosis of the colon, and surgical removal of the bullet.

1. The plaintiffs made the following submissions which I accept:

"48 Even if there may, at some stage, need to be a postponement of the trial of the proceedings until after the completion of the criminal trial (which is not accepted), there is no reason why the proceedings cannot continue in the meantime.

49 One of the guidelines set out by Wootten J in McMahon v Gould was that "[i]n an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed".

50 The defendant is yet to put on a defence in any of the proceedings. No arrangements have been made for the plaintiffs to be examined by doctors engaged by the defendant. These and numerous other interlocutory steps can occur with no possible prejudice to the criminal proceedings.

51 As Kirby P said in Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 at 43:

There would appear to be no reason why the civil action should be stayed generally, as distinct from why the trial (or particular preliminaries to it) might be subject to a special stay, protective of the criminal proceedings."

1. Accordingly, I propose to decline to make the order for a stay.

1. As the plaintiffs have been largely successful, the defendant should pay the costs of the motions.

1. I make the following orders in each proceedings:

1. Order that the proceedings Karakizos v State of NSW (2012/27695), McMaster v State of NSW (2012/4882) and Karakizos v State of NSW (2012/27725) be heard together, with evidence in any proceedings to be evidence in all proceedings.

2. Vacate the order granting to the plaintiffs access to the documents referred to in Annexure A to the affidavit of Mark Woodhead sworn 23 April 2012 ("the subpoenaed documents").

3. Grant first access to the defendant to the subpoenaed documents to enable the defendant to put into a separate envelope marked "Accessible by plaintiffs' solicitors" those documents numbered 19, 21, 22, 23 and 24 in Annexure A.

4. Grant access to the plaintiffs' solicitors to those documents in the separate envelope on their undertaking not to provide a copy of any document to any plaintiff other than providing to each plaintiff a copy of their own statement or statements.

5. Otherwise dismiss the notices of motion.

6. Order the defendant to pay the plaintiffs' costs of and incidental to the notices of motion.

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Decision last updated: 02 August 2012