Paul v Citigroup Pty Ltd - [2010] WADC 4

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PAUL -v- CITIGROUP PTY LTD & ORS [2010] WADC 4

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 12 JANUARY 2010

DELIVERED : 18 JANUARY 2010

FILE NO/S: CIV 1405 of 2008

BETWEEN: LILA PAUL
Plaintiff
AND
CITIGROUP PTY LTD (ACN 004 325 080)
Defendant
OLIVE BANUMATHI PAUL
First Third Party
FRANCIS MIRANDAH
Second Third Party

Catchwords:

Evidence - Public interest immunity - Complaints made to police

Legislation:

Nil

Result:

No public interest immunity - documents discoverable

Representation:

Counsel:

Plaintiff:     Mr J A Robertson
Defendant:     No appearance
First Third Party           :     Mr B H Taylor
Second Third Party       :     Mr B H Taylor

Solicitors:

Plaintiff:     Williams & Hughes
Defendant:     Not applicable
First Third Party           :     Talbot & Olivier
Second Third Party       :     Talbot & Olivier

Case(s) referred to in judgment(s):

Adsteam Building Industries Pty Ltd v Queensland Cement & Lime Co Ltd (No 3) [1984] 2 Qd R 366
Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394
Alister v The Queen (1984) 154 CLR 404
Attorney–General (NSW) v Stuart (1994) 34 NSWLR 667
Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30
Cain v Glass (No 2) (1985) 3 NSWLR 230
Commonwealth v Northern Land Council (1993) 176 CLR 604
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55
Conway v Rimmer [1968] AC 910
D v National Society for Prevention of Cruelty to Children [1978] AC 171
Pollard v Endale Pty Ltd [2009] WADC 97
R v Robertson; Ex parte McAuley (1983) 21 NTR 11
Sankey v Whitlam (1978) 142 CLR 1
State of Western Australia v Christie [2005] WASC 214
The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34
Trade Practices Commission v Queensland Aggregates Pty Ltd (No 2) (1981) 51 FLR 364
Young v Quin (1985) 59 ALR 225
Zarro v Australian Securities Commission (1992) 36 FCR 40

PRINCIPAL REGISTRAR GETHING: The present application is by the plaintiff, Mrs Lila Paul, for orders that she be allowed to withhold from disclosure to the third parties' four documents on her list of discoverable documents. The documents are said to be protected by the public interest immunity.
As part of the ongoing case management of this action, on 25 November 2009 I ordered the plaintiff and the defendant to serve on the third parties a copy of any list of discoverable documents and verifying affidavit which they had prepared, together with a copy of any documents so discovered. At the time of making the order, counsel for the plaintiff raised a concern that it may not be appropriate to provide certain of the documents to the third parties as they were concerned with an ongoing criminal investigation. In order to allow the plaintiff to consider this issue, I reserved to the plaintiff liberty to object to the provision of any document to the third parties. By application dated 3 December 2009 the plaintiff invoked the liberty and sought to exclude from provision the four documents from its discovery.

Summary of the action

The context in which the application is made is the plaintiff's claim against the defendant, Citigroup Pty Ltd, trading as Citibank, for conversion of a bank cheque in the amount of $200,000. The plaintiff alleges that without her authority, consent or knowledge, the defendant, at the request of one Olive Banumathi Paul ("Olive Paul"), opened a joint bank account styled Olive Paul and Mrs Lila Paul, the latter being the plaintiff ("the Citibank Account"). The plaintiff pleads that on 17 August 2007 she caused a bank cheque in the amount of $200,000 to be purchased from the Commonwealth Bank, payable to herself and crossed not negotiable ("the Bank Cheque"). She further pleads that on the same day, the defendant accepted the Bank Cheque for collection from the drawer of the Bank Cheque (namely the Commonwealth Bank), and permitted the Bank Cheque to be deposited into the Citibank Account. The plaintiff further alleges that in March 2008 the defendant wrongfully changed the style of the account into the sole name of Olive Paul.
In the course of the proceedings, the defendant joined Olive Paul as the first third party and Frances Mirandah as the second third party. Olive Paul is the plaintiff's daughter. Mr Mirandah is Olive Paul's husband.
The factual nature of the defendant's case appears from an affidavit of Jessica Anne Henry, a bank operations manager employed by the defendant, affirmed 17 October 2008. This was sworn in support of the defendant's application to bring third party proceedings and for leave to serve notice of those proceedings out of the jurisdiction. The need to obtain leave to serve notice of the proceedings outside the jurisdiction was occasioned by the fact that the third parties then resided in London.
Ms Henry deposes that on 17 August 2007 the third parties, being Olive Paul and Mr Mirandah, attended the Booragoon Branch of the defendant. They gave the Bank Cheque to an officer of the defendant who accepted it and credited the proceeds to the Citibank Account on the basis that the third parties represented to the defendant that they were acting lawfully and with the authority of the true owner of the bank cheque.
In its defence, the defendant thus admits the basic train of events in relation to the Citibank Account and the acceptance of the Bank Cheque. As an alternate claim, it asserts that it received the payment of the Bank Cheque from Olive Paul as its customer in good faith and without negligence and has no liability to the plaintiff, relying on the Cheques Act (1986) (C'th) s 95. It also raises a claim in unjust enrichment. In an amended defence filed 10 December 2009, the defendant added the alternate plea that "the account was opened upon the request and within the knowledge of the plaintiff".
In the third party notice, the defendant claims, as against the third parties, contribution or a complete indemnity for any liability that may be found owing by the defendant to the plaintiff. This is on the ground that in the event that the plaintiff did not authorise the opening of the Citibank Account, the third parties (knowingly and/or recklessly) represented to the defendant that they had authority from the plaintiff to open the account, when those representations were false.
By consent orders made on 3 April 2009, it was ordered that the third parties "be at liberty to appear at the trial of the action, and take such part as the judge shall direct and be bound by the result of the trial" and that the "question of the liability of the third party to indemnify or make contribution to the defendant be tried at or immediately after the trial of the action as the judge shall direct". At the same time the defendant and third parties were ordered to provide discovery "relating to any matter in question in the action".
In their defence in the third party proceedings, the third parties assert that the chain of events in relation to the opening of the Citibank Account and deposit of the Bank Cheque were part of an agreement between the plaintiff, third parties, and the plaintiff's husband to the effect that the first third party, Olive Paul, and the plaintiff would jointly purchase a property in Perth which the plaintiff, her husband, the third parties and the third parties' children would live in.
As will be apparent from this brief summary of the matters in dispute as between the plaintiff and the defendant, and as between the defendant and the third parties, the factual allegations put forward by the plaintiff on the one hand and the third parties on the other, comprise two different versions of what occurred surrounding the acts of the defendant in opening the Citibank Account and accepting the proceeds of the Bank Cheque into that account.
The District Court Rules 2005 (WA) empower the court to make any procedural directions "that in the court's opinion it is just to make in a case to facilitate the case being conducted and concluded efficiently, economically and expeditiously": Rule 24(1). The orders I made on 25 November 2009 whereby the third parties were to be provided with the documents discovered by the plaintiff and the defendant was made in the exercise of this case management power. Specifically, I am of the view that in order to facilitate this case being conducted and concluded efficiently, economically, and expeditiously, all parties should have disclosure of all discovered materials going to the factual issues raised in the main action and in the third party proceedings. This view is subject to the caveat of determining the present application. For the same reason, in the orders on 25 November 2009, I also ordered the defendant and third parties to provide discovery on oath, and to serve a copy of their list of discoverable documents and verifying affidavits on each other party, that is, including the plaintiff.

Public interest immunity

The general rule is that a court will not order the production of information or a document, although relevant and otherwise admissible, if it would be injurious to the public interest: Sankey v Whitlam (1978) 142 CLR 1 at 38, 48; Alister v The Queen (1984) 154 CLR 404 at 412; The Australian Statistician v Leighton Contractors Pty Ltd [2008] WASCA 34 at [30]. An objection may be made to the production of information or a document on the ground that it would be against the public interest to disclose is contents or because it belongs to a class of documents which in the public interest ought not to be produced: Sankey v Whitlam (supra) at 39; Commonwealth v Northern Land Council (1993) 176 CLR 604 at 616 ‑ 617; Australian Statistician (supra) at [31]. Public interest immunity cannot be waived: Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 at 436; Australian Statistician at [31]. It may, as in the present case, be raised by one of the parties, and in the absence of a government agency appearing and asserting the privilege: Young v Quin (1985) 59 ALR 225 at 227.
In order to assess whether the immunity applies, the court balances two competing public interests: the public interest in protecting the State from harm caused by the disclosure of certain documents and the public interest in the administration of justice. Gibbs CJ elaborates the balancing process in Alister (supra) in the following terms (412):
"[W]hen one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process -- the balancing exercise -- can only be taken when it appears that both aspects of the public interest do require consideration -- i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation."
The starting point in the assessment process is thus for the court to consider the evidential foundation of both the dimensions of the public interest immunity. The balancing exercise is only required when it appears that both aspects of the public interest require consideration: Alister at 412; Zarro v Australian Securities Commission (1992) 36 FCR 40 at 45.
As to the former, "[t]here is a clear public interest in documents being available in proceedings so that justice may be done": Trade Practices Commission v Queensland Aggregates Pty Ltd (No 2) (1981) 51 FLR 364 at 371. The public interest in the administration to justice will take its colour from whether the action is civil or criminal. The public interest in the fair trial of an accused is given particular weight in the balancing process. In a civil case such as the present, the pleadings will form the framework to determine whether the documents contain, or are likely to contain, material evidence.
As to the public interest in preventing disclosure, the affidavit claiming this privilege "should state with precision the grounds on which it is contended that documents or information should be not be disclosed so as to enable the court to evaluate the competing interests": Sankey at 96. It is necessary for the court to know "with precision what it is that is said to be the interest that requires that the document, or class of documents, by preserved from production": Adsteam Building Industries Pty Ltd v Queensland Cement & Lime Co Ltd (No 3) [1984] 2 Qd R 366 at 368, Zarro (supra) at 56, 65. Even in relation to investigations of crime and sources of information on that subject, there must be some "condescension into particularity": R v Robertson; Ex parte McAuley (1983) 21 NTR 11 at 22; Adsteam (supra) at 370. Where the affidavit is deficient, it is open for the court to inspect the documents to inform itself as to the nature of the public interest to be protected: see generally, Zarro.
One area in which courts have from time to time upheld claims for public interest immunity is in relation to the public interest in maintaining the effectiveness of the police force and other like agencies. The general principle was set out by Lord Simon of Glaisdale in D v National Society for Prevention of Cruelty to Children [1978] AC 171 ("NSPCC") at 232‑233 (some citations omitted):
"... the law proceeds to recognize that the public interest in the administration of justice is one facet only of a larger public interest — namely, the maintenance of the Queen's peace. Another facet is effective policing. But the police can function effectively only if they receive a flow of intelligence about planned crime or its perpetrators. Such intelligence will not be forthcoming unless informants are assured: see Lord Reid in Conway v Rimmer [1968] AC 910 at 953G–954A. The law therefore recognizes here another class of relevant evidence which may — indeed must — be withheld from forensic investigation — namely, sources of police information … Here, however, the law adds a rider. The public interest that no innocent man should be convicted of crime is so powerful that it outweighs the general public interest that sources of police information should not be divulged, so that, exceptionally, such evidence must be forthcoming when required to establish innocence in a criminal trial… It would appear that the balance of public interest has been struck, both in the general rule and in its rider, in such a way as to conduce to the general advantage of society with the public interest in the administration of justice as potent but not exclusive."
See also: Sankey at 65 - 66; Young (supra) at 236 ‑ 237; State of Western Australia v Christie [2005] WASC 214 at [41].
Disclosure of the methods used by police may impede or frustrate police in the pursuit of offenders in the particular case, or may reveal methodologies which may frustrate future police activities: Attorney‑General (NSW) v Stuart (1994) 34 NSWLR 667 at 674-675; Christie (supra) at [42]-[50]. The material disclosed may reveal police techniques and methods of a covert nature which if became generally known would impact upon the ability of the police to control crime: Christie at [36]. Further, "it is essential that nothing used by police in their pursuit of criminals should be disclosed which may give any useful information concerning continuing inquiries to those who organise criminal activities": Stuart (supra) at 675 citing Conway v Rimmer [1968] AC 910 at 953 – 954.
In Stuart, Hunt CJ at CL described one rationale for this aspect of the immunity in the following terms (at 675):
"… Its rationale is that, if such information were disclosed prior to charges being laid (so that criminals would know what information the police have about them), they will be able to tailor their stories to facts which cannot be disputed, to organise their responses to questions and to arrange alibis. Harm may come or be threatened to prospective witnesses before being interviewed by the police, particularly in relation to inquiries about crimes of violence."
In Stuart, a criminal case, a claim for public interest immunity was upheld where the material in issue would reveal the identity of the other offenders, and was not necessary to establish the innocence of the accused: at 685. In the same case, the court also upheld a claim where disclosure might well have given useful information to the prejudice of continuing police inquiries into criminal activities in the context where there was no legitimate forensic purpose for the disclosure of the documents: Stuart at 685. The evidence was to the effect that the material identified various persons as suspects or witnesses, that a number of such persons had not yet been interviewed but it was intended to interview them, that some did not yet know that they were under investigation, and that the contents of the documents were "sensitive police intelligence": Stuart at 674.
For example, an aspect of the public interest in maintaining the effectiveness of the police force is that the law will generally, but not absolutely, protect the identify of police informers. In NSPCC Lord Diplock stated of this rule (at 218):
"The rationale of the rule as it applies to police informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime… So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by the time of Marks v Beyfus (1890) 25 QBD 494 had already hardened into a rule of law, the balance had fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence, disclosure of the identity of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure."
This rule has been affirmed in the Australian context: see for example Sankey at 65 - 66; Cain v Glass (No 2) (1985) 3 NSWLR 230 at 248 and Zarro at 60.
For the purposes of the present case, it is important to note that the identity of the police informers is known, namely the plaintiff and her husband. The police informer rule does not then have direct application.

Documents over which immunity is claimed

The plaintiff claims public interest immunity over four documents from her list of discoverable documents:
(a)document 12 – letter from Commercial Affairs Department of the Singapore Police Force ("CAD") to Lila Paul dated 29 August 2007 regarding a complaint against Paul Olive Banumathi (NRIC No 5712 1874J);
(b)document 25 – proof of evidence of Lila Paul dated 29 April 2008 provided to Western Australian Police Service ("WAPS") at Cannington;
(c)document 30 – proof of evidence dated 30 May 2008 of Christie Paul (the plaintiff's husband) given to WAPS; and
(d)letter to the Commercial Affairs Department Singapore from Lila Paul dated 23 August 2008 titled complaint against Olive Banumathi Paul and attachments.

These documents were provided to the court in a sealed envelope annexed to an affidavit of John Andrew Robertson sworn 4 December 2009. Mr Robinson is the solicitor employed by the plaintiff's solicitor with the conduct of the matter on behalf of the plaintiff.
Copies of each of these documents have been provided to the defendant earlier in the proceedings.
With the approval of counsel for the plaintiff and for the third parties (the defendant not taking any part in the application), I inspected the four documents over which the immunity is claimed.

Evidence in support of the claim for public interest immunity

The factual basis for the claim for public interest immunity is contained in Mr Robertson's affidavit of 4 December 2009, together with a second affidavit sworn 21 December 2009 and a third affidavit sworn 12 January 2010. The facts which follow are Mr Robertson's instructions from the plaintiff, which he verily believes to be true.
The plaintiff has made two complaints to the authorities about the involvement of the third parties in the subject matter of this action. The first is to the Major Fraud Squad of the WAPS. The plaintiff and her husband provided proofs of evidence to the WAPS as part of their ongoing investigation into this complaint (namely documents 25 and 30).
On or about 1 December 2009, the plaintiff's solicitors wrote to the WAPS asking the relevant investigating officers if they objected to the third parties having access to the two proofs. By letter dated 3 December 2009, a Stuart Scott, who is a Detective Senior Constable with the Major Fraud Squad, wrote to Mr Robertson and advised that he was the case officer for a stealing/fraud offence reported to the police by the plaintiff in April 2009. He confirmed that the matter is "still being investigated and is the subject of a current inquiry". He goes on to say that "persons of interest have been identified but are yet to be interviewed by Police". He then states that "as such, it is preferable that the following documents are not provided to other parties at this stage … statement of Lila Paul (four pages) dated 29 April 2008 … statement of Christie Paul (six pages) dated 30 May 2008".
By letter dated 17 December 2009, annexed to Mr Robertson's second affidavit, Mr Robertson sought elaboration from the WAPS as to the basis for its preference that the documents not be provided. In that affidavit, Mr Robertson goes on to depose the following:
"6.I am informed by DSC Scott and verily believe it to be true:
6.1He had been on a training course and returned to his role today and received W & H's letter dated 17 December 2009 today;
6.2If the WAPS was to intervene in this action for formerly raise Public Interest Immunity (PII) in relation to the Criminal Investigation Documents (given to WAPS) he would need to contact the State Solicitor's Office (SSO) to act for the WAPS;
6.3In his experience he does not believe that the WAPS has the resources to engage the SSO to intervene and that if he did he would need to put up a request through his superiors to engage the SSO; and
6.4He stands by his statement, contained in his facsimile dated 4 December 2009, that he prefers the two witness statements given to the WAPS by Ms Paul and her husband, C. Paul, not to be released to the Third Parties."
The second complaint is to the CAD, that is, the Singapore police. Mrs Paul instructed Mr Robertson that she had instructed a Singapore based lawyer to compile a complaint to the CAD concerning a fraud relating to the sale of her property in Singapore. Her Singapore solicitor filed the complaint with the CAD. An investigation officer by the name of Yasni Yahaya, was assigned to the investigation of the complaint. Mrs Paul has further instructed Mr Robertson that the CAD has issued a "Police Gazette" for the arrest of Ms Olive Paul relating to the complaint to the CAD. Mr Robertson annexes an email dated 4 June 2009 from Mr Yahaya to Mrs Paul, the plaintiff, confirming that the CAD has issued a "Police Gazette" for Ms Olive Paul.
There is no evidence from the CAD as to their views on disclosure of the documents provided to them, though there is evidence of the efforts made by the plaintiff to obtain the views of the CAD.

Determination of the claim

From the review of the authorities set out above, the first stage in the analysis is to consider whether harm would be done to the public interest by the production of the documents. The second stage is to consider whether the administration of justice would be frustrated or impaired if the documents were withheld. The final stage is to balance the two competing public interests and to decide which of those two aspects predominates.
The authorities which I have discussed above provide that the court needs to know with some precision or particularity what it is that is said to be the public interest that requires the documents be preserved from production. The authorities also provide that a bland statement to the effect that the disclosure is not warranted in order to maintain the public interest in the effectiveness of the police force is not sufficient. For example, in the case of informants, the specific public interest sought to be protected is to ensure that the police receive a flow of intelligence about planned crime or its perpetrators, and that such intelligence will not be forthcoming unless informants are ensured of their confidentiality.
In the present case, there is no condescension into any particularity. In relation to the WAPS complaint, all we have is a preference from the investigating officer that the statements not be released. This case is very different from that of an informer because the identity of the parties providing the complaint is known. Neither is it a case where it is asserted that some particular methodology of the relevant investigating authorities will be disclosed.
The letter from the CAD to Mrs Paul, can be dealt with succinctly. Having inspected this document, all it does is acknowledge receipt of the plaintiff's letter dated 23 August 2009. It does not contain any details of particular police methodology. There is no public interest I can discern in preventing its disclosure.
The remaining three documents emanate from the defendant or her husband. The contents of the remaining documents can be divided into three broad categories. The first category comprises the witness statements. They contain the evidence which the plaintiff or her husband would be likely to give at any potential future criminal trial relating to the complaint to the WAPS.
By orders made on 16 December 2009, the plaintiff is to file and serve witness statements of the witnesses she intends to lead at the trial, and is to do so by 28 January 2010. Having read the two witness statements, in my view, it is inevitable that the witness statements filed will deal with the matters raised in the statements of the plaintiff and her husband given to the WAPS. Given that the third parties will shortly be given witness statements covering the same factual issues as in the statements given to the WAPS, there does not seem to be any risk of harm to the public interest in the effectiveness of the police in allowing disclosure of the statements at this stage.
To the extent that there are omissions or inconsistencies between the witness statements filed in the action and the statements given to the WAPS, these are matters which, in the public interest in the administration of justice, should be disclosed to the third parties. This is so they can test the evidence of the plaintiff and her husband in the civil action. Given the gravity of the allegations against the third parties - in effect fraud - it is of greater importance than in other cases for the evidence of the plaintiff and her husband to be comprehensively tested in this civil action.
The second category of materials are documents. These are contained in the letter to the CAD dated 23 August 2008.
The documents are said by the plaintiff in her covering letter to the CAD (discussed below) to evidence an alleged fraud by the third parties in relation to the sale of the plaintiff's house in Singapore. The documents appear (in the main) to have been obtained from the solicitors said to have been engaged by the third parties in relation to the sale. They include copies of:
(a)a power of attorney given by the plaintiff in favour of Olive Banumathi;
(b)agreements signed by the third parties;
(c)correspondence addressed to the plaintiff care of Olive Banumathi;
(d)correspondence between the Singaporean lawyers and DBS Bank Ltd;
(e)emails and correspondence between the Singaporean lawyers and Mr Mirandah; and
(g)bank statements.
I cannot see how disclosure of these documents to the third parties would prejudice the public interest in the effectiveness of the Singaporean police force. They do not disclose the identity of an informer nor any police methodologies. At best their disclosure might be said to allow the third parties to "tailor their stories to the facts which cannot be disputed, to organise their responses to questions and to arrange alibis", to repeat sections from the judgement of Hunt CJ at CL in Stuart quoted in full above. However, if the involvement of the third parties in the sale of the plaintiff's house in Singapore is as described by the plaintiff in her letter to the CAD, then the contents of the documents annexed to that letter will be well known to the third parties.
The third category of material comprises observations by the plaintiff as to the events in issue. These are set out in the complaint letter to the CAD. I could well understand that the plaintiff would be reluctant to have this information disclosed to the third parties for tactical reasons in the current action. However, the letter has already been disclosed to the defendant. Further, the nature of the public interest immunity is that the document will only be protected if it can be shown that disclosure would harm the public interest. The fact that disclosure harms the interest of the plaintiff is patently not sufficient. As with the documents attached to the letter to the CAD, the only public interest which I am able to discern which may be affected by the release of its contents is in the ability of the third parties to use the information to respond to the inquires of the CAD. However, this risk is unlikely. The contents of the letter are basically a chronology of events pieced together from the attached documents. There is a low risk that disclosure of the contents of the letter to CAD will prejudice any investigation it may have by revealing new information to the third parties.
I pause here to note an interesting argument raised by the third parties. It is that the only prejudice I am able to consider is that to the public interest of Western Australia and/or Australia. According to the third parties, I am not able to consider prejudice to the public interest in the effectiveness of Singaporean police force. There may be some merit to this point. Australian courts will not enforce a foreign penal or public law: Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40. In that case, the six members of the High Court who dealt with the case on the basis of this rule went on to comment that the "rule is associated with a related principle of international law, which has long been recognized, namely that, in general, courts will not adjudicate upon the validity of acts and transactions of a foreign sovereign State within that sovereign's own territory". This may in turn suggest a reluctance to consider the public interest of a foreign jurisdiction. Having said that, in the context of cross-border offences, there may well be circumstances in a particular case where it is in the interests of Australia to consider the impact on law enforcement in a foreign jurisdiction.
It is not necessary to decide the point. Assuming that out of a principle of comity between nations an Australian court would protect the public interest in the effectiveness of the Singaporean police force, I am not persuaded that there is any prejudice to this public interest in the release of the documents presently under consideration.
The analysis of the types of documents set out above touched on the second part of the public interest, namely whether the administration of justice would be frustrated or impaired if the documents were withheld.
The plaintiff raised the issue of whether the CAD letter and enclosed documents are relevant to the issues as between the plaintiff and the defendant (as opposed to the issues between the defendant and the third parties). However, in my view, the plaintiff has conceded this point by including the documents in her discovery in her action with the defendant. In my view, this decision was correctly made. Given the overlap between the subject matter of the complaint and the subject matter of the action, and the width of the disclosure obligations pursuant to the "Peruvian Guano" test, it would be very difficult to imagine how the documents provided to the CAD would not be discoverable in the course of the current action (see: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Company (1882) 11 QBD 55; Pollard v Endale Pty Ltd [2009] WADC 97 at [10]).
Again because of the overlap between the issues in the main action and the third party proceedings, I am satisfied that the third parties have a "legitimate forensic purpose" for wanting access to the documents: see generally Stuart at 675.
On one level, it could be argued that the administration of justice would not be frustrated or impaired because the substance of Mrs Paul and her husband's testimony will be disclosed in witness statements and any relevant documents otherwise disclosed in the discovery process. However, this ignores two factors. The first is that the documents have already been disclosed to the defendant. If the documents are not disclosed to the third parties as well, one can imagine difficulties arising at trial. An example would be if counsel for the defendant sought to cross‑examine the plaintiff on an inconsistent statement in her statement to the WAPS. This would place the trial judge in a very difficult position. Given the overlap of the issues, it would not be possible for counsel for the third party and the third parties, to be excluded from the court whilst this cross-examination took place. It may be that this cross-examination is crucial to the trial judge's view as to the credibility of the plaintiff vis a vis the third parties. Non-disclosure would put the third party at the forensic disadvantage of not having access to the same materials for cross‑examination purposes.
The second factor is that, as I have already noted, the allegations against the third parties are tantamount to an allegation that they have acted fraudulently. Indeed, that is the purpose of the referrals to the WAPS and the CAD. In these circumstances, the public interest in the administration of justice would strongly favour complete disclosure of all relevant materials in the hands of plaintiff. This would allow the third parties to comprehensively test the allegations of fraud made against them in the civil case. In this case, this public interest assumes a greater importance than in, say, a debt recovery action where there is no allegation of fraud, and no prospect of parallel criminal proceedings.
For these reasons I am not persuaded that a claim for public interest immunity has been made out. The documents in question ought to be disclosed to the third parties.
I will hear from counsel on the issue of costs and consequential orders.