Ollerenshaw v The Uniting Church in Australia Pty Ltd

[2017] NSWSC 1210

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ollerenshaw v The Uniting Church in Australia Pty Ltd [2017] NSWSC 1210

Hearing dates:

31 August 2017

Date of orders:

31 August 2017

Decision date:

31 August 2017

Jurisdiction:

Common Law

Before:

Garling J

Decision:

(1)   Grant access to the legal representatives of all parties to the material produced by the New South Wales Police and which is contained in bundle S 29.

 

(2)   Order with respect to the entry on page 7 of 11 and page 2 of 3 dealing with event E55926035, that the fact of that entry and the contents of it, are not to be disclosed by the legal representatives of any party to anyone without the leave of the Court being first obtained.

 

(3)   Order that the legal representatives of all parties are not to use the contents of that entry directly or indirectly for any purpose without the leave of the Court first being obtained.

 

(4)   Grant liberty to apply with respect to these orders.

 

(5)   Otherwise dismiss the Notice of Motion of 11 July 2017.

 (6)   Costs of the Notice of Motion will be costs in the cause.

Catchwords:

CIVIL PROCEDURE – subpoenas – whether legitimate forensic purpose – where information highly personal

Legislation Cited:

Not Applicable

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural and other rulings

Parties:

Angus Ollerenshaw (P)
The Uniting Church in Australia Property Trust (NSW) (D1)

Representation:

Counsel:
E G Romaniuk SC / S J Maybury (P)
K Eastman SC (D1)
M Hutchings D2)
S E Gray (D5)

  Solicitors:
Edwards Michael Powell Lawyers (P)
Clayton Utz (D1)

File Number(s):

2016/221305

Publication restriction:

Suppression orders made – see Orders 2 and 3.
Revoked by direction of Garling J on 21.8.2020.

EX TEMPORE Judgment

1. On 6 June 2017 the first defendant in these proceedings issued a subpoena to produce documents addressed to the New South Wales Police.

2. Two copies of a bundle of documents have been produced to the Court by the New South Wales Police in answer to that subpoena. The material is contained in envelope S 29.

3. There are 11 pages of documents in one bundle and three pages of documents in a second bundle. Counsel for the plaintiff have had access to those copy documents. Counsel submits that the entirety of the material under event reference E55926035, bearing a reported date of 17 November 2014 and a narrative created on 18/11/2014, ought be redacted from the material to which the other parties are given access.

4. Counsel submits that it is clear that the subject of that event narrative is not the plaintiff and that there is no legitimate forensic purpose for the defendants to have access to this material.

5. I am informed, and I accept, that the person who is the subject of this event reference is capable of being identified from other documents available to all of the parties in the proceedings and is likely to be called as a witness.

6. I am of the view that the contents of this narrative may, but not necessarily will, be relevant to the reliability and accuracy of any evidence which may be given by the proposed witness.

7. In those circumstances I am not able to conclude, as counsel for the plaintiff submits I ought, that there is no legitimate forensic purpose to be served by making this entry available to the parties.

8. However, what is clear about this entry is that the contents of it are highly sensitive in a personal way to the individual concerned. There may well be people associated with that individuals – family members, friends, colleagues and the like – who do not know of the details of the events which are recounted. Indeed, the individual may think, not inappropriately, that material of this sort is confidential to him and would not be disclosed publically without compelling reasons. That would not be an unreasonable belief for the individual to have, nor would it be an unreasonable view for this Court to take.

9. Because I am of the view that this material may have a legitimate forensic purpose, it is obviously in the interests of justice for the defendants to have access to it but that access ought be controlled in a way which minimises any risk of personal harm and distress to the individual concerned.

10. The best way in which to enable that to happen is to allow access to the material limited to the legal representatives of the parties and not to permit any use to be made of the material without a further order of the Court.

11. In those circumstances I make the following order:

1. I grant access to the legal representatives of all parties to the material produced by the New South Wales Police and which is contained in bundle S 29.

2. With respect to the entry on page 7 of 11 and page 2 of 3 dealing with event E55926035, I order that the fact of that entry and the contents of it, are not to be disclosed by the legal representatives of any party to anyone without the leave of the Court being first obtained.

3. I order that the legal representatives of all parties are not to use the contents of that entry directly or indirectly for any purpose without the leave of the Court first being obtained.

4. I grant liberty to apply with respect to these orders.

5. I otherwise dismiss the Notice of Motion of 11 July 2017.

6. Costs of the Notice of Motion will be costs in the cause.

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Amendments

24 August 2020 - Suppression order revoked by direction of Garling J on 20.8.2020.

Decision last updated: 24 August 2020