Philpott, Kaye Adele v Richardson, Steven Allen and State of Tasmania

[1998] TASSC 146

146/1998

PARTIES:  PHILPOTT, Kaye Adele

v
RICHARDSON, Steven Allen
TASMANIA, State of

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  377/1997
DELIVERED:  24 November 1998
HEARING DATE/S:  25 August 1998
JUDGMENT OF:  The Master

CATCHWORDS:

Procedure - Discovery - Inspection - Privilege - Public interest immunity.
Beecham Group Ltd v Bristol-Myers Co [1979] VR 273, followed.
Grant v Downs (1976) 135 CLR 674; Alister & Anor v R (1983 - 1984) 154 CLR 404; Hall v Nominal Defendant (1966) 117 CLR 423; Attorney-General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475; Kingston v State Fire Commission 140/1998, considered.
Conway v Rimmer and Another [1968] AC 910; Neilson v Laugharne [1981] 2 WLR 537; Hehir v Commissioner of Police [1982] 1 WLR 715; Ninnes v Graham (1986 - 1987) 70 ALR 801; Evans v Chief Constable of Surrey [1988] 3 WLR 127; Finch v Grieve & Others (1991) 22 NSWLR 578, referred to.
Aust Dig Procedure [450 - 451]

REPRESENTATION:

Counsel:
           Plaintiff:  K S McLagan
           Second Named Defendant:           L J Neasey
Solicitors:
           Plaintiff:  Bartletts
           Second Named Defendant:           Director of Public Prosecutions

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  146/1998
Number of pages:  2

Serial No 146/1998
File No 377/1997

KAYE ADELE PHILPOTT v
STEVEN ALLEN RICHARDSON and STATE OF TASMANIA

REASONS FOR JUDGMENT  THE MASTER

24 November 1998

The plaintiff issued an interlocutory application seeking inspection of certain documents for which the second defendant has claimed privilege.  It was announced at the outset of the hearing that only items 5 and 6 of part II of the first schedule of the list of documents filed by the second defendant remained in dispute.

The cause of action alleged in the writ and statement of claim is for damages for defamatory statements made by the first defendant about the plaintiff in the course of his employment with the second defendant on or about 19 September 1996.

The first defendant is a police officer who was at the relevant date alleged to have made defamatory statements by telephone about the plaintiff from the police station at Westbury to one, Donna Weeks, a radio room operator and police officer at the Launceston Communications and Operations Division at Launceston.

The writ was filed on 7 November 1997, and an affidavit verifying the list of documents was filed on 15 May 1998.

The items for which inspection is sought are as follows:

"5       Copies of documents from Personal Dossier of S A Richardson."
         [Under this heading, seven documents are listed.]

6A copy of 'Tasmania Police - Procedures Manual - Guidelines for Investigation of Complaints against police Officers'."

In determining this application, the above documents were produced to me for inspection which is a practice now frequently adopted by the courts (see Beecham Group Ltd v Bristol-Myers Co [1979] VR 273).

Ms McLagan of counsel for the plaintiff submitted, and it is not in dispute, that in order to establish legal professional privilege the documents must be brought into existence for the sole purpose of their being submitted to legal advisers for advice or for use in legal proceedings.  Grant v Downs (1976) 135 CLR 674 is the leading High Court authority in Australia which established this principle. But the privilege claimed upon this application is one of "public interest immunity" and not legal professional privilege in the sense used in Grant v Downs (supra) per Jacobs J at 691 - 692.  I also note that the privilege claimed has been commonly, but misleadingly, referred to as "Crown privilege" (see Alister & Anor v R (1983 - 1984) 154 CLR 404 at 412 per Gibbs CJ).

I refer to the following cases which have dealt with applications for inspection of documents where the issue of public interest immunity was involved ¾ Conway v Rimmer and Another [1968] AC 910; Neilson v Laugharne [1981] 2 WLR 537; Hehir v Commissioner of Police [1982] 1 WLR 715; Ninnes v Graham (1986 - 1987) 70 ALR 801; Evans v Chief Constable of Surrey [1988] 3 WLR 127; Finch v Grieve & Others (1991) 22 NSWLR 578.

I also refer to the text, Law of Privilege, by S B McNichol in which, at 417, the learned author considers the issue of public interest immunity where internal police inquiries bring into existence documents relating to police misconduct.

The authorities disclose that in the exercise of the discretion by a court whether to order or refuse the inspection of documents where public interest immunity is involved, it is a question of balancing that interest against the interest of the other party.  In internal police inquiries, after which civil actions ensue and where a third party is involved, the discretion has often been exercised in favour of the immunity claimed but, of course, the discretion cannot be exercised by way of analogy to other cases, but must be reached on the facts of the particular application before the court (see Hall v Nominal Defendant (1966) 117 CLR 423 per Windeyer J at 445).

After inspection of the documents in issue upon this application, I consider it is likely that such documents were brought into existence in the belief that they were only for the purposes of the inquiry and that had it been thought otherwise, the makers of such documents would have been substantially inhibited with the probable result that the inquiry would have been frustrated and unlikely to have been brought to a satisfactory conclusion.  On the other hand, there was no material submitted to me to enable an inference to be drawn that the plaintiff who, despite access to other discoverable documents and evidence, would be prejudiced by the refusal to allow her to inspect the documents in issue.  A party should not be allowed to inspect otherwise immune documents for the purpose of a fishing expedition.

In my view, item 6 in the list of documents is allied to item 5.  At the hearing, Mr L Neasey of counsel for the second defendant submitted that in addition to its immunity, this document is not a relevant one.  If such be the case, it should not have been discovered at all.  However, as I am of the view that it falls under the same umbrella as item 6, leave to file a further list omitting this document is unnecessary.  If inspection had been inadvertently given of the document to the other party, then consideration of the use which could be made of such disclosure would have been necessary (see Attorney-General for the Northern Territory v Maurice & Ors (1986) 161 CLR 475 and Kingston v State Fire Commission 140/1998).

As a result, I hold that the documents enumerated under items 5 and 6 are subject to public interest immunity and inspection by the plaintiff is refused.