NSW Commissioner of Police v Zurich Australian Insurance Ltd

[2016] NSWCA 365

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	NSW Commissioner of Police v Zurich Australian Insurance Ltd [2016] NSWCA 365
Hearing dates:	6 September 2016
Decision date:	19 December 2016
Before:	Meagher JA at [1]; Ward JA at [54]; Emmett AJA at [55]
Decision:	1. Grant leave to appeal. 2. Set aside orders 1 and 6 made by the primary judge on 28 April 2016. 3. Set aside that part of the subpoena issued in the underlying proceedings on 20 November 2014 and addressed to the applicant Commissioner which requires the production of “all audio recordings of conversations taken by NSW Police during the course of the investigation”. 4. Order that the material produced by the applicant on 30 May 2016 pursuant to order 1 made on 28 April 2016 be returned to the Crown Solicitor, as solicitor for the applicant. 5. Order the first respondent, Zurich, to pay the costs of the applicant and of the second and third respondents in respect of the applicant’s notice of motion dated 27 April 2016. 6. Order the first respondent pay the applicant’s costs of the application for leave to appeal, and of the appeal.
Catchwords:	APPEAL – application for leave – where subpoena required the Commissioner to produce recordings which were “protected information” under Surveillance Devices Act 2007 (NSW) – where prohibition under s 40(1) against use, communication or publication of such information – where Commissioner applied to set aside subpoena on basis that lacked any legitimate forensic purpose because recordings could not lawfully be used in proceedings – where primary judge ordered production of recordings to Court – whether subpoena lacked legitimate forensic purpose – whether primary judge erred in ordering production – subpoena set aside COMMUNICATIONS LAW – interception of communications – Surveillance Devices Act 2007 (NSW) – where s 40(1) prohibits use of recordings that are prohibited information – whether tender of recordings in evidence or use of contents to issue further subpoena constitute use
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 144(2) Insurance Contracts Act 1984 (Cth), s 56(1) Privacy and Personal Information Protection Act 1998 (NSW) Supreme Court Act 1970 (NSW), s 101(2)(e) Surveillance Devices Act 2007 (NSW), s 39, 40, 43 Telecommunications (Interception and Access) Act 1979 (Cth), s 63(2) Uniform Civil Procedure Rules 2005 (NSW), r 1.9
Cases Cited:	Director General, Department of Education and Training v MT(2006) 67 NSWLR 237; [2006] NSWCA 270 Kizon v Palmer (No 2) (1998) 82 FCR 310 Military Rehabilitation and Compensation Commission v May [2016] HCA 19 National Employers’ Mutual General Association Limited v Waind [1978] 1 NSWLR 372 NSW Commissioner of Police v Tuxford [2002] NSWCA 139 R v Brown (Gregory) [1996] 1 AC 543 R v Saleam (1989) 16 NSWLR 14 Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285
Category:	Procedural and other rulings
Parties:	NSW Commissioner of Police (Applicant) Zurich Australian Insurance Limited (First Respondent) Andrei Voitenko t/a Access Party Hire (Second Respondent) Irena Voitenko t/a Russ Style Productions Party Hire (Third Respondent)
Representation:	Counsel: P Singleton (Applicant) D A Lloyd (First Respondent) D Woodbury (Second and Third Respondents)   Solicitors: Crown Solicitor’s Office (Applicant) Wotton + Kearney (First Respondent) Boyd House & Partners (Second and Third Respondents)
File Number(s):	2016/148196
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2016] NSWSC Date of Decision: 28 April 2016 Before: Hall J File Number(s): 2014/204107

Judgment

1. MEAGHER JA:

Overview

This is an application by the Commissioner for leave to appeal. The question raised by the proposed appeal is whether that part of a subpoena requiring the Commissioner to produce “protected information” within the meaning of Pt 5 Div 1 of the Surveillance Devices Act 2007 (NSW) (the Act) should be set aside. The Commissioner contends that part of the subpoena has no legitimate forensic purpose because the application of that Division necessarily has the consequence that the first respondent insurer, Zurich, cannot make any use of the information sought. In support of the proposition that in such circumstances it should be set aside the Commissioner relies on the decision of the Full Court of the Federal Court in Kizon v Palmer (No 2) (1998) 82 FCR 310.

2. The proceedings in which the subpoena was issued were commenced in the District Court by the second and third respondents as insureds (respectively carrying on a party hire business and a food processing business) against Zurich to recover an indemnity in relation to the plant, machinery and contents of a warehouse that were destroyed by fire on 22 August 2010. Zurich’s defence includes that this claim is made fraudulently. The part of the subpoena sought to be set aside requires the production of “all audio recordings of conversations taken by NSW Police” during the course of an investigation relating to the second and third respondents. It is common ground that the recordings constitute “protected information” obtained from the use of a surveillance device under a warrant.

3. On 23 October 2015 Gibb DCJ transferred the whole of the proceedings, which by that time included the Commissioner’s motion filed 23 June 2015 to set aside part of the subpoena, to the Supreme Court pursuant to s 144(2) of the Civil Procedure Act 2005 (NSW). Her Honour did so for the purpose of this Court hearing that motion.

4. As is explained below, that motion was determined by the primary judge (Hall J) in a judgment delivered on 24 March 2006: Voitenko t/as Access Party Hire v Zurich Australian Insurance Ltd [2016] NSWSC 324.

5. On 28 April 2016 the primary judge ordered that the audio recordings be produced to the Registrar of the Common Law Division on or before 27 May 2016. The time stipulated for compliance with that order permitted the Commissioner the opportunity to apply for a stay. That application was made on 27 May 2016 and refused by Fagan J. The recordings were then produced to the Court by the Commissioner on 30 May 2016.

6. The Commissioner applies for leave to appeal from the order requiring production of the recordings and, by a further amendment made to the draft amended notice of appeal during the course of the hearing, seeks an order that the recordings presently in the custody of the Court be returned.

The issues in the appeal

7. The Commissioner’s grounds of appeal raise two related matters.

8. The first is whether the primary judge erred in ordering the production of the confidential recordings without first determining the Commissioner’s application that the subpoena be set aside because it did not have a legitimate forensic purpose (ground 1(a)). The Commissioner contends that the primary judge also erred in failing to hold that the subpoena had no legitimate purpose because it required production of material which by law could not be used, communicated or published in or in relation to the proceedings (ground 2). This is the substantial issue in the appeal.

9. The second is whether the primary judge erred in holding that s 43 of the Act provided a proper basis for requiring production of the protected information, and in treating this provision as relevant when determining if an order for production should be made (ground 3).

10. The remaining ground of appeal (ground 1(b)) is whether his Honour erred in failing to uphold the Commissioner’s objection to production in reliance on Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 1.9. That rule 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 … .

(4)   A person objecting under subrule (3) may not be compelled to produce the document … unless and until the objection is overruled.

11. The Dictionary to the UCPR defines a “privileged document” as one containing “privileged information”, which includes information “the disclosure of the contents of which or the admission or use of which” in any “proceedings would be contrary to any Act”.

12. These issues turn upon the construction and application of Pt 5 Div 1 of the Act.

Relevant provisions of the Surveillance Devices Act

13. It is not disputed that the recordings contain “protected information” within s 39 of the Act. Subsections 40(1) and (2) prohibit use, communication or publication of such information, and make it an offence to do so. The offence against s 40(2) is an aggravated form of the offence against s 40 (1), which provides:

(1)   A person is guilty of an offence if:

(a)   the person intentionally, knowingly or recklessly uses, communicates or publishes any protected information, and

(b)   the person knows that, or is reckless as to whether, the information is protected information, and

(c)   the person knows that, or is reckless as to whether, the use, communication or publication of the information is prohibited by this section.

14. However these prohibitions are not absolute and do not apply in any of the circumstances described in subs 40(3)(a) to (e). Those circumstances relevantly include:

(3)   (a)   the use, communication or publication of:

(i)   any information that has been disclosed in proceedings in open court, or

(ii)   any information that has entered the public domain, or

(b)   the use or communication of protected information by a person who believes on reasonable grounds that the use or communication is necessary to help prevent or reduce the threat of serious violence to a person or substantial damage to property, or

15. Subsection 40(4) also permits use, publication or communication of protected information, if it is necessary to do so for any of the purposes in (a) to (h), including:

(b)   the making of a decision whether or not to bring a prosecution for a relevant offence within the meaning of this Act or a relevant offence within the meaning of a corresponding law,

(c)   a relevant proceeding within the meaning of this Act or a relevant proceeding within the meaning of a corresponding law,

16. A “relevant proceeding” includes a prosecution of a “relevant offence” which in turn is a reference to any offence against a law of New South Wales, or of the Commonwealth or another State or Territory, and irrespective of whether it is the offence in respect of which the relevant surveillance device was used (subs 4(1), 40(9)).

17. Subsections 40(5), (6) and (7) permit the chief officer of a “law enforcement agency” (which relevantly includes the NSW Police Force) to consent to protected information being “communicated or published by a law enforcement officer to any person”, provided that the chief officer is satisfied as required by subs 40(6) and, in so deciding, has taken into consideration “the manner in which the protected information will be dealt with after it is communicated to the person concerned” (subs 40(7)). The matter about which subs 40(6) requires the chief officer to be satisfied is that “the public interest in communicating the information outweighs any intrusion on the privacy of the person to whom it relates or of any other person who may be affected by its communication”.

18. Finally, s 43 permits the Court to order that a person is entitled to search any protected information in its custody. It provides:

A person is not entitled to search any protected information in the custody of a court unless the court otherwise orders in the interests of justice.

19. It is convenient at this point to summarise the arguments made to the primary judge and his conclusions.

The arguments made to the primary judge

20. The Commissioner contended that the subpoena lacked a legitimate forensic purpose as Zurich could not make any use of the audio recordings in the proceedings because to do so would constitute an offence under s 40(1). For that reason it was submitted that the subpoena be set aside.

21. The Commissioner also objected to producing the recordings on the ground that they were a “privileged document”. Relying on UCPR r 1.9(4) it was submitted that the Commissioner could not be compelled to produce the recordings to the Court unless and until that objection was overruled.

22. Zurich submitted that in addressing the Commissioner’s arguments the Court should proceed in accordance with the three steps described by Moffitt P in National Employers’ Mutual General Association Limited v Waind [1978] 1 NSWLR 372 at 381:

The first step is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, … . The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the documents in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise.

23. In relation to that first step, Zurich argued that there could not be no serious doubt that the audio recordings had apparent relevance to the issues in dispute as they may include statements made by the insured respondents about their conduct in connection with their insurance claim. To the extent that this step includes production to the Court, it was said that the Commissioner’s reliance on UCPR r 1.9 was misplaced because that production was not prohibited by s 40(1) or (2).

24. As to the second step, Zurich submitted that there would be no breach of those subsections by the parties being permitted to inspect the documents because any such inspection, by listening to the recordings, would not involve any use, communication or publication within s 40(1). With respect to the third step described in Waind, Zurich argued that whether the parties could use, communicate or publish the recordings was a matter to be determined by the Court after inspection.

Reasoning and conclusions of the primary judge

25. There is an issue (that raised by ground 1(a)) as to whether the primary judge correctly proceeded in accordance with the three steps outlined in Waind. He first addressed whether s 40(1) would be contravened by the Commissioner producing to the Court the recordings containing the protected information. His Honour concluded that it would not, on the basis that mere production of that material to the Court did not involve any use, communication or publication of that information: Judgment at [114]. This last conclusion is not challenged on appeal.

26. His Honour did not then consider whether, assuming the recordings were produced to the Court, Zurich could make any use of them without contravening s 40(1). This question was raised by the Commissioner’s argument that the relevant part of the subpoena should be set aside as lacking any legitimate forensic purpose. In Kizon it was held that there could be no legitimate forensic purpose for issuing a subpoena if the party doing so was unable to make any use in the proceedings of the material that might be produced: at 325 (Northrop and Branson JJ) and 325-326 (French J).

27. The primary judge then turned to the question of the parties having access to the protected information and concluded that by the exercise of the Court’s power under s 43 a party or its legal representative might be entitled to search the information “in the custody” of the Court where it was ordered that occur “in the interests of justice”: Judgment at [118]. His Honour considered that whether such an order should be made required, in the first instance, an examination by the Court of the records containing the protected information: Judgment at [125].

28. The Commissioner does not contend in this appeal that there would be any contravention of s 40(1) involved in the making of an order under s 43 permitting a search of the protected information once it was in the custody of the Court, or in any person undertaking a search pursuant to such an order.

29. The primary judge then proceeded to summarise his conclusions. Those conclusions follow Judgment [130] and appear as Conclusions (1)-(6).

30. The starting point in his Honour’s conclusions is the Commissioner’s reliance on UCPR r 1.9(3) and (4). The primary judge noted the basis for the Commissioner’s objection to production as being that the recordings contain “privileged information”, the production and use of which would be contrary to s 40(1). However production to the Court could not constitute a breach of s 40(1) and the recordings should not be the subject of an order for access to Zurich, or any other person, before a determination was made under s 43.

31. Directing attention to s 43, his Honour noted that whether the Court should make such an order “in the interest of justice” would require that the recordings be examined. He continued:

(6) Upon a determination being made under s 43, the judge examining the recordings will need to consider whether an order can be made under s 43 and, if so, whether as a matter of discretion, such an order should be made. Decisions on those matters will necessarily have the effect of determining the Commissioner’s objection to producing the recordings under UCPR 1.9(3).

[131]   It follows from the conclusions set out at (1)-(6) above, that it is premature at this stage for the Court to consider whether the Commissioner is entitled to any form of relief setting aside the subpoena as sought in paragraph 1 of the Amended Notice of Motion or in the alternative any relief as sought under paragraph 2 of the Amended Notice of Motion.

[132] The question of final relief is necessarily dependent upon there first being a determination of the interests of justice question arising under s 43 of the SD Act. Such a determination will be directly relevant to the issue of the legitimate forensic purpose of the subpoena, the issue raised in the Commissioner’s Amended Notice of Motion.

32. The primary judge subsequently (on 28 April 2016) ordered that the recordings be produced so as to enable the Court to consider whether a determination should be made under s 43.

33. As appears above the primary judge considered that whether an order was made providing access under s 43 would determine the Commissioner’s objection to producing the recordings under UCPR r 1.9(3) and “be directly relevant to the issue of legitimate forensic purpose”. He had earlier observed that “it is premature at this stage” for the Court to consider whether the Commissioner is entitled to any form of relief setting aside the subpoena. These last two observations suggest that the primary judge had not finally addressed, at least as far as he was concerned, the first of the three steps outlined in Waind which includes determining any application to set the subpoena aside for want of “forensic legitimacy” (Kizon at 326).

Whether the subpoena had a legitimate forensic purpose (grounds 1(a) and 2)

34. It is not controversial that a subpoena to produce documents will be set aside unless the party seeking production satisfies the Court that the subpoena has a legitimate forensic purpose: see Waind at 382; R v Saleam (1989) 16 NSWLR 14 at 18; NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [20]-[21]; Kizon at 325-326.

35. As Moffitt P says in Waind, the first step in the procedure for having documents produced to the Court on subpoena involves the determination “of any objections of the witness to the subpoena”. At that first stage the subpoena may be set aside on the ground that it was “improperly used and an abuse of the power to compel the production of documents in any one of a number of ways” (Waind at 381). One of those ways is that the subpoena does not have a legitimate forensic purpose.

34. It is accepted that the Commissioner sought to set the subpoena aside on the basis that it lacked a legitimate forensic purpose because the confidential recordings could not lawfully be used by reason of s 40(1). Zurich also accepts that a subpoena which does not have a legitimate forensic purpose should be set aside and, in accordance with the decision in Kizon, that a subpoena which seeks material that cannot be used in or in relation to the proceedings does not have such a purpose.

35. As is apparent the primary judge did not finally address this question before ordering that the prohibited recordings be produced. Instead his Honour seems to have proceeded on the basis that if the Court made an order under s 43 permitting a search, Zurich may thereafter have been entitled to use the recordings in the proceedings. To have so concluded would not take account of the application of the prohibition in s 40(1) and (2) upon the person by whom that search has been undertaken. Zurich accepts, correctly in my view, that those subsections continue to apply to that person. However it contends that there remain three possible scenarios in which the recordings may then or thereafter be available to be used in the proceedings, any one of which would constitute a legitimate reason for the issue of the subpoena.

36. The Commissioner’s principal argument is that the primary judge should have held, addressing the question of legitimate forensic purpose before ordering production, that the subpoena lacked forensic legitimacy and should have been set aside. That argument is the subject of ground 2 and requires consideration of the construction of s 43 (which is also the subject of ground 3).

37. That argument may be stated shortly and, for the reasons which follow, should be accepted. Section 40(1) prohibits the use, communication or publication of any protected information. Any “use” of the protected recordings in or in relation to the proceedings (including by tendering them in evidence) would answer that description, or involve a prohibited “communication or publication”. None of the exceptions in s 40(3) or (4) applies, and there has been no consent to a communication or publication under s 40(5). Section 43 does not provide a means by which the information may become available to be used more generally. If the recordings were produced to the Court and an order made under s 43, the person undertaking the search would be subject to the prohibition on use, communication or publication in s 40(1).

38. The Commissioner’s argument turns on the content of the prohibition against “use” and is best considered by reference to the three scenarios proposed by Zurich as justifying the issue of the subpoena. Each assumes that the recordings are produced to the Court and that an order is made under s 43 permitting a representative of Zurich to search them “in the interests of justice”.

39. The first is that the search leads to a “chain of inquiry” which involves at some stage the issue of another or other subpoenas for production addressed to persons identified, either directly or indirectly, from the recordings. It is said this sequence of events would not involve a breach of s 40(1) by the person who has undertaken the search. That depends on whether listening to the recordings, hearing something of significance and then deciding to issue a subpoena on the basis of what is heard, involves a “use” within s 40(1).

40. The second scenario is that following such a search the recording is tendered in the underlying proceedings as a confidential exhibit. It is also said that this would not involve a breach of the prohibition in s 40(1) against use or communication. The description of this scenario does not include any consideration of how the protected information might be tendered by Zurich without any communication for the purpose of making the tender (for example, communication of the information to a solicitor or counsel) and to the other parties to the proceedings (here, the second and third respondents), or at least to their legal advisors, for the purpose of considering its admissibility. Again there is a question whether listening to the recording, hearing something and as a result, deciding to tender the or a part of the recording, and then doing so in the hearing, would constitute “use” within s 40(1). Zurich submits that “use” does not include the act of tendering material in evidence and points out that in Kizon the prohibition in s 63(2) of the Telecommunications (Interception and Access) Act 1979 (Cth) expressly prohibited the giving of the relevant information “in evidence in a proceeding”.

41. The third scenario is that in circumstances where an order has been made permitting a search of the protected information, there may also be a consent to the communication or publication of the information under s 40(5). It is said that such a consent might then “permit use of the materials”. Zurich accepts however that the person to whom any communication or publication under s 40(5) may be made would also remain subject to s 40(1), unless that communication or publication necessarily had the consequence that the information was “disclosed in proceedings in open court” or “entered the public domain” so as to engage one of the exceptions in s 40(3)(a). Nor is it contended by Zurich that it would be a legitimate forensic purpose for issuing the subpoena that it would assist in obtaining the consent of the chief officer to such a communication or publication under s 40(5). Rather the legitimate forensic purpose is said to be in securing the production of material to the Court which at some later stage might become subject to one of the exceptions in s 40(3)(a).

42. The first and second of these scenarios necessarily involve the use or communication of the protected information, contrary to s 40(1). The words use, communicate and publish, as they appear in s 40, must, as is said in Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [10] (French CJ, Kiefel, Nettle and Gordon JJ), be construed by reference to the text, context and purpose of the Act. The natural and ordinary meaning of “use”, which is not defined in the Act, includes to make use of, or to employ or apply for a purpose: see for example R v Brown (Gregory) [1996] 1 AC 543 at 548 (Lord Goff) and 554-555 (Lord Griffiths, although in dissent, agreeing that to use information at least includes applying it for a particular purpose). An example of such a use is provided by the facts in Director General, Department of Education and Training v MT (2006) 67 NSWLR 237; [2006] NSWCA 270. A teacher in the Department breached a prohibition against the use of personal information by acting on medical information about a student’s health for the purpose of securing an indemnity from the student’s parents in favour of a local sports club in whose soccer team the student played.

43. The recognition and protection of privacy in the Act justifies a broad rather than narrow approach to the construction of the prohibition against the use of information: see Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at [299] (Sackville J) which concerned the interpretation of similar Commonwealth legislation. Adopting the ordinary meaning of “use”, the making of a decision to tender some part of the protected information in evidence would be prohibited because there has been a consideration of the information for a particular purpose and a decision to apply it for that purpose. That “use” includes the consideration and making of the decision to tender, as well as the act of tender, is wholly consistent with the permitted exceptions in s 40(4). These exceptions throw light upon the meaning of the words of prohibition because of the scheme of s 40 (a general prohibition and defined permitted exceptions) which assumes that the prohibition would otherwise apply to and prevent any use, publication or communication for the expressly permitted purposes. Those purposes include use for the purpose of a “relevant proceeding” (s 40(4)(c)), for the purpose of making a decision whether or not to bring a prosecution (s 40(4)(b)) and for the purpose of the appointment or re-appointment or promotion or retirement of certain public officers (s 40(4)(e)). Use for the purpose of prosecuting an offence would include tendering the recording in evidence.

44. The third scenario does not describe or identify a legitimate forensic purpose for the issue of the subpoena. As already noted, it is not suggested that doing so to assist in obtaining the consent of the chief officer to a communication or publication under s 40(5) would be such a purpose. Nor could Zurich lawfully “use” information produced on subpoena, assuming an order has been made under s 43, to make or support an application for such consent because the person who searches the information would remain subject to s 40(1).

45. None of the scenarios argued for by Zurich identifies a legitimate forensic purpose for the issue of the subpoena. That confirms my view that in the absence in this case of any circumstances falling within one of the exceptions in s 40, the prohibition in s 40(1) prevents the lawful use of the protected information by Zurich in or in relation to the proceedings. The primary judge erred in not so concluding and in not setting aside the subpoena on that basis.

46. Grounds 1(a) and 2 should be upheld.

Remaining issues in the appeal (grounds 1(b) and 3)

49. These grounds do not arise. To the extent ground 3 concerns the construction of s 43, I have made clear that the section does not, by permitting a search of protected information in the custody of the Court, thereby give rise to any entitlement to use other than in accordance with the exceptions to which the prohibitions in s 40 are subject.

50. As the subpoena should have been set aside at the outset the application of UCPR r 1.9 does not arise.

Leave to appeal

51. Zurich submits that leave should not be granted for two reasons. They are that the primary judge’s decision does not disclose error and that it would be premature and an inefficient use of the Court’s resources to grant leave at this stage. That is because it is said that the primary judge should be permitted to address finally the question whether the subpoena should be set aside.

52. I have concluded that the decision below involves error in two respects and that there is no good reason for this Court not to intervene to address that error. In those circumstances it would be an inefficient use of the Court’s resources not to grant leave and set aside the subpoena. There are other reasons for granting leave. The construction of ss 40 and 43 of the Act is a matter of general importance and application; and the interests of justice are served by ensuring that information obtained from the use of a surveillance device is protected from disclosure otherwise than in accordance with Pt 5 Div 1. For these reasons the Commissioner should have leave to appeal.

Conclusion

53. The following orders should be made:

1.   Grant leave to appeal.

2.   Set aside orders 1 and 6 made by the primary judge on 28 April 2016.

3.   Set aside that part of the subpoena issued in the underlying proceedings on 20 November 2014 and addressed to the applicant Commissioner which requires the production of “all audio recordings of conversations taken by NSW Police during the course of the investigation”.

4.   Order that the material produced by the applicant on 30 May 2016 pursuant to order 1 made on 28 April 2016 be returned to the Crown Solicitor, as solicitor for the applicant.

5.   Order the first respondent, Zurich, to pay the costs of the applicant and of the second and third respondents in respect of the applicant’s notice of motion dated 27 April 2016.

6.   Order the first respondent pay the applicant’s costs of the application for leave to appeal, and of the appeal.

54. WARD JA: I agree with Meagher JA.

55. EMMETT AJA: By amended summons dated 17 June 2016, NSW Commissioner of Police (the Commissioner) seeks leave to appeal under s 101(2)(e) of the Supreme Court Act 1970 (NSW) from an order made on 28 April 2016 by a judge of the Common Law Division (the primary judge). By that order, the primary judge ordered the Commissioner to produce to the Registrar of the Court certain recordings, or an authenticated transcript of the recordings and that the recordings or transcript be placed in a sealed envelope, not to be opened without an order of a judge of the Court and to be held in safe custody.

56. The Commissioner seeks leave to appeal on the basis that the primary judge erred by:

• ordering the Commissioner to produce material under subpoena without first holding that the subpoena had a legitimate forensic purpose in circumstances where the material was privileged within the meaning of r 1.9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and the objection to production had not been overruled;

• by failing to hold that there could be no legitimate forensic purpose in requiring production of material that, by law, could not be communicated or used with respect to the proceedings; and

• by holding that s 43 of the Surveillance Devices Act 2007 (NSW) authorised the Court to acquire production of material containing protected information and was relevant to determining whether or not the Court should order production of material under subpoena.

57. The question of production of recordings arose in proceedings brought in the District Court by the second and third respondents, Andrei Voitenko trading as Acess Party Hire and Irene Voytenko trading as Russtyle Productions, against the first respondent, Zurich Australian Insurance Limited (Zurich). In the District Court proceedings, the second and third respondents claimed damages from Zurich by reason of alleged breach of the policy of insurance issued by Zurich to the second and third respondents. By the policy, Zurich agreed to indemnify them for loss and damage to all plant, machinery and contents of a warehouse property situated in Mortdale, New South Wales. The warehouse and its contents were destroyed by fire and Mr and Mrs Voitenko made a claim on Zurich under the policy. Zurich claims that it is entitled to refuse to pay the claim pursuant to s 56(1) of the Insurance Contracts Act 1984 (Cth) because the claim was made fraudulently.

58. The circumstances of the fire were investigated by the Commissioner who obtained a warrant under the Surveillance Devices Act. Under that warrant, police obtained audio recordings of certain conversations. Zurich caused a subpoena for production of documents to be issued by the District Court to the Commissioner. The subpoena required production of, relevantly, all audio recordings of conversations obtained by New South Wales Police during the course of the investigation of the fire. By further amended notice of motion filed in court on 28 April 2016, the Commissioner sought an order that the subpoena be set aside in part, on the ground that Zurich lacked a legitimate forensic purpose to require production of the audio recordings since they cannot be used in the proceedings without an offence being committed under s 40(1) of the Surveillance Devices Act. The Commissioner sought, in the alternative, an order that he be excused from producing the audio recordings on the ground that they are documents containing privileged information under UCPR, r 1.9(3) and, in the further alternative, an order that there be no inspection of the audio recordings on the ground that it is not in the interests of justice for inspection to occur.

59. The Commissioner formulates the questions raised by the proceedings as follows:

• Can a court order production of the documents under a subpoena if the court is not first satisfied that the subpoena has a legitimate forensic purpose?

• Will a subpoena have a legitimate forensic purpose if, by law, no use may be made of the material of which it seeks production?

• Can a court order production of a privileged document within the meaning of UCPR, r 1.9?

• Does s 43 of the Surveillance Devices Act 2007 require a different answer to any of those questions?

60. Section 40(1) of the Surveillance Devices Act relevantly provides that a person is guilty of an offence if the person uses, communicates or publishes any protected information, knows that the information is protected information and knows that the use, communication or publication of the information is prohibited by s 40. Protected information includes any information obtained from the use of a surveillance device under a warrant. The recordings in question contain protected information.

61. The Commissioner accepts that s 40 does not make it an offence to produce protected information to a court and that it is not an offence to make an order permitting inspection of such material or to inspect such material. That conduct does not amount to using or communicating the protected information.

62. However, any use of the material is prohibited by s 40 unless the exceptions in ss 40(3), (4), (4A) or (5) apply. Thus, the Commissioner says, any purpose for which a subpoena seeks production of protected information can only be legitimate if that purpose is authorised by, or the circumstances attract the operation of, one of those provisions. He says that there can be no legitimate forensic purpose in requiring production of that which cannot lawfully be used. Further, a lawyer who had inspected the material containing protected information would not be able to communicate that information to the solicitor’s client.

63. The Commissioner complains that neither Zurich nor the primary judge identified any purpose in having the audio recordings or a transcription produced to the Court. Neither pointed to any provision that would render lawful and legitimate any proposed use of the information contained in the material.

64. Section 43 of the Surveillance Devices Act relevantly provides that a person is not entitled to search any protected information in the custody of the court unless the court otherwise orders in the interests of justice. The Commissioner contends that that provision does not confer on a court an independent power to require production of protected information. Rather, it is a further prohibition on access.

65. The Dictionary in the UCPR relevantly provides that information, the disclosure of which or the admission or use of which in proceedings would be contrary to any act is privileged information. However, privileged information does not include information that the court declares not to be privileged information for the purposes of those proceedings. A privileged document is a document that contains privileged information.

66. UCPR, r 1.9 relevantly provides that a person may object to producing a document on the ground that the document is a privileged document. A person objecting under that provision may not be compelled to produce the document unless and until the objection is overruled. For the purpose of ruling on the objection, the person objecting may be compelled to produce the document.

67. I have had the considerable advantage of reading in draft form the proposed reasons of Meagher JA. I agree with Meagher JA that Zurich has not identified a legitimate forensic purpose for the issue of the subpoena. Accordingly, in the absence of any circumstances falling within one of the exceptions in s 40, s 40(1) prevents the lawful use of the protected information by Zurich in or in relation to the proceedings. The primary judge erred in not so concluding and in not setting aside the subpoena on that basis.

68. I also agree with Meagher JA, for the reasons proposed, that it is appropriate to grant leave to appeal. I agree with the orders proposed by his Honour.

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Decision last updated: 22 March 2018