Mendel v State of NSW

[2019] NSWDC 146

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Mendel v State of NSW [2019] NSWDC 146
Hearing dates:	29 March & 15 April 2019
Date of orders:	29 April 2019
Decision date:	29 April 2019
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraph [92] for orders.
Catchwords:	CIVIL PROCEDURE – application by plaintiff pursuant to UCPR r 33.4 to set aside a subpoena for production of video, audio and photographic recordings made of actions of police officers when they attended at the applicant plaintiff’s premises and arrested him –consideration of the application of UCPR r 31.10 and a legitimate forensic purpose in withholding production of material sought in accordance with the Markus exception: Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 – case management directions for evidentiary statements to be provided pursuant to s 56, s 57, s 58, s 61 and s 62 of Civil Procedure Act 2005 and UCPR r 31.4(1)
Legislation Cited:	Civil Procedure Act 2005 [NSW], s 14, Part 3, s 56, s 57, s 58, s 61, s 62 Court Suppression and Non-publication Orders Act 2010 (NSW), s 4, s 6, s 7, s 8 Crimes Act 1900 (NSW), s 61 Crown Proceedings Act 1988 (NSW), s 5 Evidence Act 1995 (NSW), s 44 Inclosed Lands Protection Act 1901 (NSW), s 4(1) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99, s 230 – s 231 Law Reform (Vicarious Liability) Act 1983 (NSW), s 8(1) Uniform Civil Procedure Rules 2005, r 20.14, r 20.15, r 31.4, r 31.10, r 31.19, r 31.37, r 31.46, r 33.4
Cases Cited:	Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kimberley Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210 Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 Nowlan v Marsland Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346 Rinehart v Welker [2011] NSWCA 403 The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40 White v Overland [2001] FCA 1333
Category:	Procedural and other rulings
Parties:	Charles Gregory Mendel (Applicant/Plaintiff) State of New South Wales (Respondent/Defendant)
Representation:	Counsel: Mr D Porter - Solicitor (Applicant/Plaintiff) - 29 March 2019 Mr N Kirby (Applicant/Plaintiff) – 15 April 2019 Mr M Hutchings (Respondent/Defendant)   Solicitors: Armstrong Legal (Applicant/Plaintiff) Sparke Helmore (Respondent/Defendant)
File Number(s):	2018/261158
Publication restriction:	None

Judgment

Table of Contents

Application to set aside a subpoena	[1] – [2]
Schedule to the subpoena	[3] – [4]
Substantive proceedings and factual background	[5] – [11]
Facts not in dispute in the proceedings	[12]
Disputed facts	[13] – [23]
Affidavit invoking “the Markus exception”	[24] – [31]
Reasons for receiving confidential affidavit	[32] – [46]
Legislation	[47] – [48]
Determination by reference to submissions	[49] – [85]
The statutory argument	[51] – [57]
The technology and authenticity argument	[58] – [66]
The waiver argument	[67] – [71]
The evidentiary argument	[72] – [75]
Requirements of open justice	[76] – [84]
Conclusion	[85]
Case management considerations	[86] – [89]
Disposition	[90]
Costs	[91]
Orders	[92]

Application to set aside a subpoena

1. These reasons concern the determination of a contested notice of motion filed by the applicant plaintiff on 14 February 2019, by which, pursuant to Uniform Civil Procedure Rules 2005 (“UCPR”), r 33.4, he seeks to set aside a subpoena for production issued at the request of the respondent defendant.

2. The applicant plaintiff also seeks such other orders as the Court considers appropriate to the circumstances of the case. The latter prayer evolved into a case management application by which the applicant plaintiff sought to be excused from serving or providing copies to the respondent defendant of certain audio-visual recordings and photographs on account of the existence of a legitimate forensic purpose which justified that course: Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1, at [5]-[8]; Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372, at [5], [108]; following Kimberley Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210, (“the Markus exception”).

Schedule to the subpoena

3. Exhibit “A” on the motion comprises the subpoena in question, the schedule of which calls for the plaintiff to produce the following documents:

“1   A copy of this Subpoena.

2   All video footage, video recordings, audio recordings and photographs of the events that occurred at or around [address redacted] Street Woollahra NSW 2025 (the Premises) at approximately 1:30am on 12 March 2016, including but not limited to:

2.1   Any interaction that took place between yourself and the following

persons:

(a)   Constable Jessica Lee;

(b)   Constable Eloise Arnold;

(c)   Probationary Constable Ramon Gilarte;

(d)   Leading Senior Constable Georgia Robinson;

2.2   Alleged trespass to the Premises by NSW Police Officers;

2.3   Alleged assault of you by NSW Police Officers;

2.4   Your arrest.”

4. The applicant plaintiff conceded that the documents sought by the respondent defendant are relevant to the issues that are raised for determination in the substantive proceedings.

Substantive proceedings and factual background

5. In the applicant plaintiff’s substantive claim against the respondent defendant he seeks damages arising from the allegedly tortious actions of police officers. The State of New South Wales is named as the defendant in the proceedings pursuant to s 5 of the Crown Proceedings Act 1988 (NSW) and s 8(1) of the Law Reform (Vicarious Liability) Act 1983 (NSW).

6. The underlying events giving rise to the substantive proceedings occurred at the applicant plaintiff’s home in Woollahra, at about 1.30am on Saturday 12 March 2016.

7. At that time, a number of named police officers obtained entry onto the applicant plaintiff’s property in the course of seeking to abate alleged noise in the neighbourhood. Without the prior consent of the applicant plaintiff, and without an authority obtained pursuant to s 4(1) of the Inclosed Lands Protection Act 1901 (NSW), police scaled a boundary wall to gain entry to the plaintiff’s property. This was in circumstances where it was thought that the noise disturbance in question was emanating from the applicant plaintiff’s property. He claims that such entry constituted a trespass, following which he claims other wrongful events occurred, including the use of unnecessary force to arrest him.

8. Consequently, in the substantive proceedings, the applicant plaintiff claims damages for alleged trespass to land, wrongful arrest, assault, battery and false imprisonment. The applicant plaintiff claims compensatory, aggravated and exemplary damages.

9. Some of the factual events that are in question in the substantive proceedings were the subject of a form of contemporaneous recordings made by video, audio and photographic means on electronic equipment belonging to the applicant plaintiff. The respondent defendant now seeks interlocutory access to that material through the subpoena process.

10. The applicant plaintiff opposes that course, citing the existence of exceptional circumstances which justify that material being protected from disclosure because of what is known as the Markus exception as earlier cited.

11. At this interlocutory stage of the proceedings it is not necessary for the Court to form a view of the merit or otherwise of the factual foundation for the applicant plaintiff’s claims made in the substantive case.

Facts not in dispute in the proceedings

12. On the first day of the hearing of the motion, Mr D Porter, solicitor, appeared for the applicant plaintiff. At that stage, the respondent defendant had not yet filed a defence. The filing of that defence had been delayed as a result of some interlocutory slippage in the preparation timetable. Nothing seems to turn on such slippage. A defence was ultimately filed on 4 April 2019. In that defence, the respondent defendant admits that:

1. The eight named police officers were serving police officers at the time of the events: Defence, paragraphs 4-11;

2. The Crown may be sued for the actions of those persons: Defence, par 13;

3. Each act carried out by those police officers was done in performance or purported performance of their service as police officers: Defence, par 15;

4. The defendant is vicariously liable for the actions of those officers but the alleged torts are denied: Defence, par 15;

5. On 12 March 2016, at 12.35am, a computer aided despatch message was created on the COPS database regarding a noise complaint at [address redacted] Street, Woollahra: Defence, par 17;

6. On 12 March 2016, at approximately 1.30am, Constables Lee and Arnold arrived at [address redacted] Street, exited their police vehicle and used the intercom buzzer on the street-facing boundary wall: Defence, par 18;

7. Probationary Constable Gilarte placed the plaintiff under arrest: Defence, par 60;

8. Probationary Constable Gilarte handcuffed the plaintiff: Defence, par 62. He subsequently released the plaintiff from those handcuffs.

Disputed facts

13. The applicant plaintiff’s statement of claim is a comprehensively pleaded document that sets out material facts in a detailed and logical sequence calling for answer or traversal in a defence.

14. The defence, as presently filed, is not particularly informative on the factual issues that will obviously arise for determination in the substantive proceedings. It is apparent from the numerous factual allegations made in the applicant plaintiff’s statement of claim, when compared with the limited admissions cited above, that significant areas of factual dispute still remain to be resolved by findings of fact at a substantive hearing.

15. The filed defence responded to 25 paragraphs of the applicant plaintiff’s statement of claim by not admitting the facts pleaded by the applicant plaintiff: Defence, paragraphs 1, 3, 12, 16, 21, 22, 23, 30, 32, 34, 35, 44, 49, 50, 53, 55, 63, 64, 65, 66, 67, 70, 73, 75 and 82.

16. The filed defence also responded to 45 paragraphs of the applicant plaintiff’s statement of claim by denying the facts pleaded by the applicant plaintiff: Defence, paragraphs 14, 19, 20, 24, 25, 26, 27, 28, 31, 33, 36, 37, 38, 39, 40, 41, 42, 43, 46, 47, 48, 50, 51, 52, 54, 56, 57, 58, 59, 61, 68, 69, 72, 74, 76, 77, 78, 79, 80, 81, 83, 84, 85, 86 and 88.

17. The expectation of the Court is that the parties will take appropriate steps to comply with their obligations as identified in the overriding purpose embodied within s 56 of the Civil Procedure Act 2005 (NSW) so that in the very near future those areas of factual and legal dispute will become narrowed to the essential matters in dispute.

18. That course is mandated in this case where the remaining areas of factual contest as referred to in [15] – [16] above are compared with the factual circumstances evident from the content of a four page NSW Police Force COPS event report comprising Exhibit “B”, and from the content of a forty-two page NSW Police Force Investigator’s Report comprising Exhibit “C”, the latter document having been prepared in response to a complaint about police conduct by the applicant plaintiff.

19. I infer from the nature of those documents and from the circumstances that the factual content of those documents is within the knowledge of the respondent defendant’s legal advisors.

20. A brief examination of the investigation report comprising Exhibit “C” shows that, even though it has been considerably redacted, there has been an extensive police investigation of complaints made by the applicant plaintiff about the police officers named in this case, as to whether those police officers had allegedly remained on inclosed lands without lawful excuse contrary to s 4(1) of the Inclosed Lands Protection Act; whether the applicant plaintiff had been dealt with wrongfully and assaulted by police through the use of unnecessary and improper use of the power of arrest contrary to s 61 of the Crimes Act 1900 (NSW); and whether or not the police officers in question had allegedly acted towards the applicant plaintiff with incivility, rudeness and with verbal abuse.

21. At this interlocutory stage of the proceedings it is unnecessary to consider the merit or otherwise of the allegations made by the applicant plaintiff either as set out in his statement of claim, or as described in Exhibit “C”.

22. Exhibit “C” reveals that the applicant plaintiff did not provide a factual statement to the police investigators who produced that report. In that investigation, which on its face is stated to be complete, the applicant plaintiff also declined to provide the police with access to the subject recordings referred to in the Schedule to the subpoena comprising Exhibit “A”. I note that those police investigators were specifically instructed not to make direct contact with the applicant plaintiff in the course of that investigation: Exhibit “C”, p 39.

23. It is apparent from the content of Exhibit “C” that there seems to be some considerable scope for the areas of disputed fact to be narrowed by the parties seeking further admissions as to matters of fact that ought not be in dispute. Whether this is achieved by formal and well understood interlocutory methods, or simply by discussion between the legal representatives of the parties, is a matter for them to consider.

Affidavit invoking the Markus exception

24. On the second day of the hearing, Mr N Kirby appeared for the applicant plaintiff. In support of the claim that the Markus exception applied in this case, he relied upon a confidential affidavit affirmed by Mr David Porter, the solicitor for the applicant plaintiff on 12 April 2019.

25. That affidavit annexed a purported transcript of the audio visual material sought by the respondent defendant’s subpoena and which was sought to be read on a confidential basis, on condition that there be no publication or disclosure of that material, including to the opposing side, without further order of the Court.

26. Despite objections from the respondent defendant, that affidavit was read on the suggested confidential basis without being copied or otherwise made available to the respondent defendant’s legal representatives in accordance with the Court’s practice when dealing with applications for exemption from compliance with the requirements of UCPR r 31.10(1) in cases where there was a claimed legitimate forensic purpose for that course being taken.

27. The suggested course of excluding the respondent defendant from access to that affidavit and the annexed purported transcript was followed because the applicant plaintiff sought to be excused from disclosing that material to the legal representatives of the respondent defendant by reason of the Markus exception. Whilst such a course might arguably appear to have the effect of denying procedural fairness to the respondent defendant, there is no other practical way of considering the Markus exception for the purpose of deciding whether or not to exercise the discretion conferred by UCPR r 31.10(2).

28. Having read, seen, and listened to that material it is clearly relevant to the credit issues that are likely to be raised at a trial of the substantive case.

29. The applicant plaintiff seeks to retain a forensic advantage by keeping his metaphorical cards close to his chest, and his powder dry for the ultimate trial of the contested factual and legal issues which stand to be determined by credit based findings.

30. The applicant plaintiff seeks to maintain that position as an exception to the otherwise generally applicable principles of open justice and a “cards on the table” approach as expressed in cases such as Nowlan v Marsland Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346, and White v Overland [2001] FCA 1333. The stance taken by the applicant plaintiff was based upon the Markus exception.

31. The respondent defendant acknowledged that because of the way in which the arguments have unfolded in this application, it was not necessary for the applicant plaintiff to file a formal notice of motion seeking the exercise of the discretion sought. Given the circumstances, had there been such an objection, in the spirit of s 56 of the Civil Procedure Act, an order dispensing with that requirement would have been justified pursuant to s 14 of that Act. The course proposed by the applicant plaintiff is engaged by proposed Order 4 of his notice of motion, as referred to at [2] of these reasons.

Reasons for receiving confidential affidavit

32. Following argument on the question of whether or not the confidential material should be read, that question was determined in favour of the applicant plaintiff. The respondent defendant sought reasons for that ruling. At the time I indicated that my reasons for that ruling, which I considered to have been sufficiently exposed during the course of argument, would be included in my reasons for determining the present notice of motion. The essence of those reasons now follows.

33. The application for the benefit of the Markus exception must be seen in context.

34. Paragraph 91 of the defence filed by the respondent defendant on 4 April 2019 asserts that in answer to the whole of the applicant plaintiff’s statement of claim, the arrest and the detention of the applicant plaintiff, and the use of force by police officers in those events, was authorised by Part 8, s 99 and Part 18 s 230 – s 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

35. At the substantive trial, that pleading will give rise to differing onuses of proof that will rest on particular parties on the particular issues raised in the case.

36. For example, on reviewing the dynamics of this case as discerned from the pleadings, on first analysis, the applicant plaintiff is likely to give evidence that police entry to his property occurred without his permission or lawful authority, and that his subsequent arrest, physical restraint and detention, was also unlawful. If that was to constitute the entirety of the applicant plaintiff’s evidence, if it was assessed as being credible, prima facie, his case would most likely succeed.

37. Therefore, at that anticipated point in a substantive trial, the respondent defendant would then bear the onus of proving otherwise. From the defence filed in this case, where very few factual concessions are made, and denials are many, it can therefore be expected that a number of police officers will be called to give evidence to the contrary of that which seems likely to be called by the applicant plaintiff.

38. The wide-ranging nature of the denials pleaded by the respondent defendant, with only meagre counter-pleading of facts contrary to those relied upon by the applicant plaintiff, clearly indicates that the fulcrum of the substantive case will most likely be the resolution of the credibility and the reliability of the testimony of the respective witnesses. In such diametrically opposed positions, it appears highly likely that the reliability of the testimony of the respective witnesses will be subjected to substantive challenges.

39. That position is likely to occur in circumstances where the applicant plaintiff has had only limited access to the factual matters considered in the heavily redacted police investigation report comprising Exhibit “C” concerning relevant factual matters arising out of the actions of individual police officers. In those circumstances, the trial of those matters would be skewed, and unlikely to be evenly balanced in terms of timely access to relevant information.

40. In those circumstances, the applicant plaintiff seeks to retain a forensic advantage by keeping confidential a means of testing the veracity of potentially opposing evidence by reference to contemporaneously recorded material which would ordinarily be expected to provide something of a forensic record or reference point by which to evaluate the oral evidence.

32. The focal point of the consideration of the question at hand is the dictates of justice: s 58 of the Civil Procedure Act.

33. In my view, guided by the need to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings according to the dictates of justice as required by s 56 and s 58(1) and (2) of the Civil Procedure Act, I consider that the position argued by the applicant plaintiff should prevail over the objections advanced by the respondent defendant.

34. In coming to that view, I considered that persuasive factors existed which tipped the balance towards that position.

35. The first factor is the likely length and complexity of the proceedings, the number of police witnesses to be called, the character of that evidence, and the fundamentally polarised positions of the parties on important matters of factual dispute, which resulted in the applicant plaintiff being for a time deprived of his liberty whilst at his home.

36. Secondly, I consider that the degree of potential injustice that the plaintiff would suffer if denied the forensic advantage of testing the evidence of police officers in the factual circumstances of this case outweighs the considerations of a non-ambush approach with cards on the table, as discussed in Nowlan v Marsland Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346 and White v Overland [2001] FCA 1333.

37. Thirdly, there is no practical way of assessing whether or not a relevant legitimate forensic purpose existed except by inspecting the material in question: Civil Procedure Act, s 56, s 58, s 61 and s 62.

Legislation

47. The legislative provisions that are relevant to the disposition of the present notice of motion are as follows:

1. UCPR r 31.10(2)(b) provides that unless otherwise ordered, plans, photographic and audio-visual recordings must be served at least 7 days prior to the commencement of a hearing;

2. UCPR r 33.4 provides for the setting aside of subpoenas;

3. Sections 56, 57 and 58 of the Civil Procedure Act relate to the overriding purpose of the civil practice and procedure rules and the exercise of discretion under those rules concerning case management;

4. Sections 61 and 62 of the Civil Procedure Act provides for the Court to give appropriate directions as to practice and procedure generally, including case management directions as to the conduct of the hearing of cases.

48. I now turn to the determination of the issues raised in this notice of motion by reference to submissions of the parties.

Determination by reference to submissions

49. Essentially, the respondent defendant raised five arguments in opposition to the course suggested by the applicant plaintiff. These were, first, a statutory argument, secondly, a technology and authenticity argument, thirdly, an evidentiary objection, fourthly, the requirements of open justice, and fifthly, an argued waiver of any confidentiality of the material in question. It is convenient to consider those arguments in the order that will shortly follow.

50. My consideration of those matters commences with my finding that the applicant plaintiff has demonstrated a legitimate forensic purpose in not giving the opposing party a pre-trial opportunity of inspecting the material sought by the respondent defendant’s subpoena. The legitimate forensic purpose is the likely need and opportunity for testing the veracity, reliability and credibility of the witnesses likely to be called in the respondent defendant’s case on fundamentally disputed matters of fact.

The statutory argument

51. First, the respondent defendant submitted that the course sought by the applicant plaintiff, namely to protect from production documents caught by the subpoena, and not previously served, required a non-publication or suppression order to be made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW).

52. I do not accept that submission. The issue here is production, access and inspection, not the publication of matters referred to in court proceedings. In my view, that Act does not apply to the present circumstances as the provisions relied upon relate to publication of such matter, and not to access to documentary material: s 7 and s 8 of that Act.

53. Whilst s 6 of that Act refers to the object of safeguarding the public interest in open justice and the need for the court to take that object into account when deciding to make a suppression or non-publication order, s 4 provides that the terms of that Act do not restrict or otherwise affect any inherent jurisdiction or any powers that a court has in relation to the regulation of its proceedings.

54. In the present notice of motion, in contrast to the objects of that Act, I am concerned with different considerations, namely the objects of case management, the proper administration of justice in the utilisation of court resources, and the dictates of justice between the parties: s 56 – s 58 of the Civil Procedure Act.

55. In this instance, I consider that the requirements of the dictates of justice between the parties, at this interlocutory stage requires, and does not preclude, an order in the nature of the Markus exception, or an order pursuant to UCPR r 31.10(2) permitting the applicant plaintiff to withhold the material sought by the respondent defendant until during the trial. If the material becomes relevant at the trial of the substantive proceedings, and if revealed in evidence, at that time it would no longer be restricted or suppressed. Instead, it would be publicly viewable in accordance with the public interest in open justice.

56. The requirements of open justice do not necessarily require a party to always reveal potentially relevant evidence in advance of a trial of the substantive issues where there is a discretion to be exercised on that question. The dictates of justice between the parties must prevail at this interlocutory stage of the proceedings, where no substantive evidence has yet been tendered in the publicly accessible forum of a courtroom.

57. Accordingly, I do not accept the respondent defendant’s arguments based on the cited statutory provisions of s 7 and s 8 of the Court Suppression and Non-publication Orders Act.

The technology and authenticity argument

58. Secondly, the respondent defendant in effect argued that it would need to examine the audio-visual material in advance of a trial in order to examine its authenticity, otherwise, a prejudice would arise to adversely affect the respondent defendant.

59. I do not accept that argument. A decision by the legal representatives of the applicant plaintiff to cross-examine police officers according to the particular content of the audio-visual material would only arise if and when police officers gave evidence which the applicant plaintiff wished to contest by reference to that material.

60. Any need on the part of the respondent defendant to test the technological authenticity and integrity of that material would only arise if the applicant plaintiff’s legal representatives saw fit to make use of it in the course of cross-examination of police witnesses. That decision would only arise if and when those witnesses gave evidence.

61. Any need to examine the audio-visual material for technological authenticity would only arise at that time. Much would depend upon how the material would be used by the applicant plaintiff. This would be in circumstances where it would be necessary for the applicant plaintiff to be able to prove the provenance and authenticity of the material at the time it was tendered in evidence. If at that time the respondent defendant held a real concern over the authenticity or the technological integrity of the material, it would be inconceivable that an adjournment application for that purpose would be refused.

62. In light of the refusal by the applicant plaintiff to beforehand provide the respondent defendant with pre-trial access to that material, where that refusal has been upheld by an interlocutory order of this Court, without intending to express a concluded view on the matter, there would seem to be a compelling argument that the costs incurred in respect of such an adjournment should be borne by the applicant plaintiff as a consequence of the decision to withhold the material from pre-trial access by the respondent defendant.

63. An alternative means of effectively managing the question of the technological authenticity or integrity of the audio-visual material would be for the parties to agree upon the appointment of a joint expert to examine the material and issue a report that refers to the content by reference to time markers without describing the actual audio-visual content.

64. In the absence of agreement for a joint expert to be appointed the Court could be approached to give a direction for the appointment of a single expert to examine that question on suitably framed terms, also without disclosing the content: UCPR r 31.19, r 31.37 and r 31.46.

65. A further alternative means of managing the issue would be for a Referee to be appointed to determine that question, also on suitably framed terms: UCPR r 20.14 and r 20.15.

66. I remain unpersuaded by the respondent defendant’s arguments about the technological integrity and authenticity of the material.

The waiver argument

67. Thirdly, I do not accept the respondent defendant’s submission that there has been a relevant waiver of confidentiality over the material sought simply because counsel for the applicant plaintiff made reference to or described the nature of the material in argument.

68. The references made by counsel to the audio-visual material were in abstract and tangential terms that did not seek to assert details or to reveal contentious facts. Protection from disclosure was specifically maintained by counsel for the applicant plaintiff. In my view, the arguments made by counsel for the applicant plaintiff were simply illustrative of the existence of contentious circumstances, and the existence of potentially objective evidence in the form of audio-visual segments, which, if required, could be used for a legitimate forensic purpose, namely to test the reliability or the truthfulness of opposing evidence, if called.

69. This was in the context of circumstances where there might arise an arguable opportunity or temptation for police witnesses to possibly tailor their evidence if the applicant plaintiff’s confidential material was to be disclosed before the trial. In making that general observation I do not intend to convey the impression or the suggestion that the police officers named in this case would in fact do so.

70. This is in a case where the issue of credibility and reliability of factual evidence was very likely to be the fulcrum upon which the outcome of the substantive proceedings would turn. The factual determination required in that dynamic is of some importance to both parties.

71. The matters referred to in argument by counsel for the applicant plaintiff did not venture into any detail that cited the content of the audio-visual material. I therefore reject the respondent defendant’s waiver argument.

The evidentiary argument

72. Fourthly, I do not accept the respondent defendant’s argument to the effect that no evidentiary basis has been shown for the applicant plaintiff to assert that defence witnesses might possibly succumb to an argued temptation to tailor their evidence in these proceedings. I consider the basis for rejection of that argument plainly emerges from an examination of the very limited concessions emerging from the respondent defendant’s pleading.

73. This argument arises in a case management context where the Court does not decide case management issues in a vacuum, and where the principles embodied in Part 3 of the Civil Procedure Act, occupy a central focus, including where interlocutory decisions of the Court should be made in the spirit of seeking to facilitate a just, quick and cheap resolution of the matters in dispute according to the dictates of justice: s 56 to s 58 of that Act.

74. That approach requires a consideration of the matters in issue as is apparent from the pleadings, and a consideration of the likely dynamics of the case in terms of which party at a trial of the substantive case will bear the onus of proof on particular issues, also taking into account the issue of the proper administration of justice concerning the public resource of court time and the allocation of judicial resources required for the litigation.

75. In this case, the respondent defendant has not identified any persuasive evidentiary arguments for refusing the application by the applicant plaintiff.

Requirements of open justice

76. Fifthly, the respondent defendant argued that with few exceptions, it was generally well established that modern litigation required acknowledgment of the principles of open justice, with a “cards on the table” approach rather than taking an “ambush” approach: Nowlan v Marsland Transport Pty Ltd (2001) NSWLR 116; [2001] NSWCA 346; White v Overland [2001] FCA 1333; Rinehart v Welker [2011] NSWCA 403.

77. There are some just exceptions to that general principle, so that in appropriate circumstances, at a particular stage of the proceedings, a party may be permitted to withhold placing all their “cards on table” where there is a legitimate forensic purpose that justifies adopting such a course. That legitimate forensic purpose has been established in this case.

78. The Court has a discretion in that regard: UCPR r 31.10(1). The exercise of discretion with the result that such evidence is allowed to be withheld for a forensic advantage must be for sound reasons: House v The King (1936) 55 CLR 499; [1936] HCA 40. The exercise of a discretion along those lines must also be undertaken in accordance with the dictates of justice: s 58 of the Civil Procedure Act.

79. The respondent defendant’s argument arises in the context of an interlocutory application where I am not required to try the ultimate issues calling for decision. My examination of the material in contention was for the limited purpose of determining whether a material forensic purpose exists which justifies the applicant plaintiff withholding this material so as to engage the Markus exception, and the discretion conferred by UCPR r 31.10(2).

80. It is well established in litigation involving contested or competing factual versions requiring resolution by findings of fact, that a party may in some circumstances, for a legitimate forensic purpose, be permitted to protect confidential information from disclosure to prevent the temptation for the tailoring of evidence: the Markus exception as previously cited.

81. That said, I state again, it is not suggested that in this case, police witnesses will inevitably seek to tailor their evidence. The suggestion is only that a temptation to do so should be prevented by the orders sought.

82. In the dynamics of this case it must be recognised that police officers are trained and experienced in giving evidence in Court. Given the number of potential police witnesses named in the case and who are therefore likely to be called to give evidence, the argued temptation should not be dismissed as implausible. The possibility of a risk of concoction or especially where collusion of contaminating evidence is occasionally but well recognised as a potential phenomenon in contested litigation of many kinds: The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40, at [69].

83. Insofar as the withheld material contains relevant representations previously made by a person other than the witnesses, s 44(4) of the Evidence Act 1995 (NSW) provides for a specific procedure for a witness to be cross-examined on that material after listening to the context by using headphones without other persons who might be present at the cross-examination being able to hear the content. That procedure also demonstrates the existence of a legitimate forensic purpose.

84. For the above reasons I do not accept that the requirements of open justice mandates the applicant plaintiff be refused the relief he seeks in this notice of motion.

Conclusion

85. For the reasons outlined in the preceding paragraphs dealing with this issue, and on the case management considerations identified above, I consider that the cards on the table approach is in this case outweighed by the legitimate forensic purpose that has been identified at this interlocutory stage.

Case management considerations

86. The common experience of this Court is that claims of this kind made against the State of New South Wales involving allegations of intentional torts by police officers are generally very lengthy cases that are rarely confined within proffered pre-trial estimates of hearing time. Those estimates are frequently exceeded by a significant margin in such cases.

87. In identifying this consideration I do not intend to be understood to be conveying any criticism of either the representations of the State of New South Wales, or of plaintiffs generally. This observation arises simply because of the intrinsic nature and complexity of such cases, and the importance of the issues to the parties in such cases. This factor requires that the Court give some serious consideration to how its resources are appropriately managed, whilst also taking into account the need to do justice between the parties: s 58(2) of the Civil Procedure Act.

88. The limited concessions and the many matters of dispute identified from an examination of the pleadings, compellingly indicates the need for a case management order that the parties should be required to serve the evidence-in-chief of their respective witnesses in the form of evidentiary statements cross-referenced to any bundles of documentary evidence upon which they intend to rely at the hearing. Such evidence-in-chief would be expected to contain the factual matters in respect of each witness to be called concerning the matters in dispute on the pleadings, where a particular party bears a relevant onus of proof.

89. Absent a sensible agreement for a timetable for such evidence-in-chief to be served, the parties should have leave to re-list this matter for further case management directions before me, on short notice, if required.

Disposition

90. I have concluded that the orders sought by the applicant plaintiff in his notice of motion filed on 14 February 2019 should be granted and that the subject subpoena should be set aside. Furthermore, on account of case management considerations, the applicant plaintiff should be excused from the obligation of serving or otherwise making available to the respondent defendant before the trial, the material described in the now set aside subpoena: s 61(2)(c) of the Civil Procedure Act; UCPR r 31.10(2)(b). I also consider that the evidence-in-chief on the liability issues should be given in the form of statements: s 61(2) of the Civil Procedure Act; UCPR r 31.4(1).

Costs

91. It follows that the respondent defendant should pay the applicant plaintiff’s costs of the dismissed motion.

Orders

92. I make the following orders:

1. Pursuant to UCPR r 33.4, the respondent defendant’s subpoena issued and served on the applicant plaintiff on 14 February 2019 is set aside;

2. Pursuant to s 61(2)(c) of the Civil Procedure Act and UCPR r 31.10(2)(b), the applicant plaintiff is excused from serving before the substantive trial of the proceedings, the documents comprising the audio-visual recordings and material referred to in the schedule to the subpoena comprising Exhibit “A” and described at [3] of these reasons;

3. The respondent defendant is to pay the applicant plaintiff’s costs of this notice of motion on the ordinary basis unless otherwise ordered;

4. The filed copy of the affidavit of Mr David Porter affirmed on 12 April 2019, and the electronically recorded material that is referred to in that affidavit is to be placed in a sealed envelope and retained in the court file with the marking: “Not to be opened and inspected by any person without a prior order of a Judge of this Court or by order of the Court of Appeal”;

1. Pursuant to s 56, s 57, s 58, s 61 and s 62 of the Civil Procedure Act, and r 31.4(1) of the Uniform Civil Procedure Rules 2005, for the purpose of case management, in order to facilitate a just, quick and cheap resolution of the proceedings:

1. Within 42 days of today’s date, the plaintiff is to file and serve on the defendant signed evidentiary statements setting out in sequentially numbered paragraphs with subject headings, cross-referenced to a tabbed bundle of copies of any documents which he intends to tender at the hearing, all the evidence-in-chief on the factual matters he relies upon, from himself and any other witnesses to be called to give evidence in these proceedings;

2. Within 42 days of service on the defendant of the evidence referred to in Order 5(a) above, the defendant is to file and serve signed evidentiary statements setting out in sequentially numbered paragraphs with subject headings, cross-referenced to a tabbed bundle of copies of any documents which it intends to tender at the hearing, all the evidence-in-chief of all witnesses on factual matters it intends to rely upon in defence of these proceedings;

6. Liberty to apply to my Associate on 7 days notice for further or other orders that may be required in relation to the above orders.

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Amendments

01 May 2019 - paragraph [68] - changed "applicant defendant" to "applicant plaintiff"

Decision last updated: 01 May 2019