NSW Commissioner of Police v Zurich Australian Insurance Ltd

The NSW Commissioner of Police appealed to the Court of Appeal of New South Wales against an order of the primary judge that required the production of certain audio recordings. The dispute arose when Zurich Australian Insurance Ltd sought to obtain these recordings via subpoena in underlying proceedings. The Commissioner applied to set aside the subpoena, arguing that the recordings constituted "protected information" under the *Surveillance Devices Act 2007* (NSW), which prohibited their use, communication, or publication. The Commissioner contended that because the recordings could not lawfully be used in the proceedings, the subpoena lacked any legitimate forensic purpose.

The Court of Appeal was required to determine whether the subpoena lacked a legitimate forensic purpose, given the prohibitions imposed by section 40(1) of the *Surveillance Devices Act 2007* (NSW) on the use of protected information. It also had to consider whether the primary judge erred in ordering the production of these recordings to the Court, and whether the tender of the recordings in evidence or their use to issue further subpoenas would constitute a prohibited "use" under the Act.

The Court reasoned that the prohibition in section 40(1) of the *Surveillance Devices Act 2007* (NSW) was absolute and extended to any use, communication, or publication of protected information. It held that the primary judge had erred in ordering the production of the recordings, as their production would inevitably lead to their use in a manner prohibited by the Act, thereby rendering the subpoena devoid of any legitimate forensic purpose. The Court concluded that the subpoena, in requiring the production of material that could not lawfully be used, lacked the necessary forensic purpose.

Consequently, the Court of Appeal granted leave to appeal, set aside the primary judge's orders for production, and ordered that the subpoena be set aside in so far as it required the production of the audio recordings. The Court also ordered the return of any material produced and directed Zurich Australian Insurance Ltd to pay the costs of the Commissioner and other respondents.