Pycroft v The State of South Australia - [2009] SADC 1

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
PYCROFT v THE STATE OF SOUTH AUSTRALIA & ANOR
[2009] SADC 1
Judgment of His Honour Judge Nicholson
16 January 2009
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS
Appeal by the plaintiff from a Master's decision applying ss48(7) of the Police (Complaints and Disciplinary Proceedings) Act 1985 and refusing to order the Police Complaints Authority, a non party to the action, to discover documents in its possession. Appeal dismissed.
Police (Complaints & Disciplinary Proceedings) Act 1985 s48, ss48(7); Crown Proceedings Act 1992 (SA) s5; Police Act 1998 (SA) s65, ss65(1); Health Insurance Act 1973 (Cth) s130, referred to.
Kadlunga Proprietors & Ors v Electricity Trust of South Australia [1985] 39 SASR 410; White & Ors v State of South Australia & Ors (2007) 96 SASR 581; R v Ferri [2002] SASC 217; Goldsmith v Newman (1992) 59 SASR 404; Minister for Community Services and Health & Anor v Carter and Gribbles Pathology Pty Ltd & Anor FC SCSA, unreported judgement No S2450, 1 July 1990; Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (No 8) [2002] SASC 20, considered.

PYCROFT v THE STATE OF SOUTH AUSTRALIA & ANOR
[2009] SADC 1
Preliminary

By Notice for Specific Directions (FDN 11), the plaintiff applied for an order that the Police Complaints Authority (“PCA”) make disclosure of all documents held by it “arising out of” a complaint made by the plaintiff or otherwise relating to a motor vehicle collision in which the plaintiff was injured. The PCA opposed any order for disclosure relying on the immunity conferred on it by ss48(7) of the Police (Complaints & Disciplinary Proceedings) Act, 1985 (“the Act”).
This is an appeal from the decision of a Master refusing the plaintiff’s application for non-party disclosure by the PCA.
The grounds set out in the Notice of Appeal are as follows:
1. The learned Master erred in law in concluding that, in the absence of special reasons, section 48(7) of the Police (Complaints & Disciplinary Proceedings) Act, 1985 precludes an order being made pursuant to Rule 60.02 of the District Court Rules, 1987 for disclosure of the existence of relevant documents by the Authority.
2. The learned Master erred in concluding that affidavit evidence from the Authority that all relevant documents in possession of the authority were covered by section 48(7) was conclusive of that fact.
3. The Authority should be required to disclose the documents so as to allow the plaintiff to test the Authority’s assertion as to section 48(7), and to allow the Court to assess whether the documents as described by the Authority might be relevant to the question of whether there were special reasons for an order for the production of the documents pursuant to 48(7)(c).
As the matter was argued, the key issues to be determined on this appeal concern first, would disclosure of documents held by the PCA in the form of a Kadlunga list[1] constitute a divulgence of information within ss48(7); and second, if so, whether an order for disclosure should nevertheless be made by the Court on the basis of the exception set out in ss48(7)(c).
[1] Kadlunga Proprietors & Ors v Electricity Trust of South Australia [1985] 39 SASR 410 particularly at 414. Such a list ordinarily would contain information about each document, including date, provenance and a brief description of its nature (but not its content) sufficient to enable the other party to decide whether it wishes to inspect the document, to enable questions of privilege to be considered, to enable the document to be subsequently identified and to enable a court to decide whether or not an order for production should be made.
Factual Background
In these proceedings, the plaintiff claims damages against the defendants, the State of South Australia and Mr Marton Biro, for injuries sustained as a result of a fall from his motorcycle on 4 January 2001. It is alleged that police officers observed the plaintiff riding his motorcycle in excess of the speed limit along Main Street in Robe and whilst carrying a pillion passenger who was not wearing a helmet. The plaintiff refused to stop and a pursuit involving police officer Biro ensued. During the pursuit, the plaintiff was knocked from or fell from his motorcycle to the ground.
Following this incident, the police undertook their normal procedures for investigating a crash and, in addition, referred the matter to the Major Crash Investigation Unit.[2]
[2] Transcript, p.3-4.
Subsequently, the plaintiff, by letter dated 26 November 2003, made a complaint to the PCA, pursuant to ss19(1)(b) of the Act, in relation to the conduct of the police officers involved in the pursuit. The PCA advised the plaintiff on 14 December 2004 that, following advice received from the Director of Public Prosecutions, a determination had been made pursuant to ss21(1)(f) of the Act to conduct no further investigation into the complaint.[3] This letter from the PCA to the plaintiff disclosed that the PCA had access to a signed statement from a Senior Constable Bissell, information from other police witnesses and a record of interview with the pillion passenger.
[3] Casebook for Appeal, p.41.
The plaintiff has requested discovery by the PCA of these and any other documents created in the time between the crash and the lodging of the complaint held by the PCA. The PCA relied on ss48(7) of the Act in refusing this request.
The plaintiff therefore seeks orders that the PCA particularise each document in its possession with sufficient detail to enable the Court to make a proper assessment of the claim for immunity under ss48(7). Further, the plaintiff requested that the PCA file and serve an affidavit detailing the circumstances and conditions under which any information contained in such documents has been divulged to the defendants or their agents.
The State of South Australia was joined as a defendant in this matter pursuant to s5 of the Crown Proceedings Act 1992 (SA). The Amended Statement of Claim alleges that the State of South Australia is liable for the acts and omissions of the defendant, Biro, pursuant to s65 of the Police Act 1998 (SA) which provides:
(1)A member of S.A. Police does not incur any civil liability for an honest act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this or another Act or any law.
(2)A liability that would, but for subsection (1), lie against a member of S.A. Police lies against the Crown.
The State of South Australia has admitted that Biro was a member of the SA Police and that any liability that would lie against Biro, in the absence of ss65(1) of the Police Act, lies against the Crown.
Role of the Police Complaints Authority and Policy Objectives of the Act
The role of the PCA was described by Doyle CJ in of White & Ors v State of South Australia & Ors[4] in the following terms:
The Police Complaints Authority is appointed to that office under s5(1) of [the Act]. The functions of the Police Complaints Authority (The PCA) are to investigate complaints about the conduct of a member of the police force and to investigate possible misconduct on his or her own initiative: s22A. The PCA also has the function of considering a report on investigations into complaints, making assessments of the conduct of members of the police force, and recommending whether disciplinary action should be taken: s32 of ‘the Act’. ‘The Act’ contains provisions that regulate in detail the manner in which complaints are dealt with. The Act provides that when a complaint is made the Commissioner of Police must arrange for the complaint to be investigated by the internal investigation branch of the police force, a separate branch required to be established by s13 of ‘the Act’. However, the PCA has power to determine in specified circumstances that the PCA will investigate a matter: s23. The officer in charge of the internal investigations branch must report on completion of an investigation to the Commissioner of Police, who is required to furnish that report to the PCA: s31.
[The Act] contains provisions which enable the PCA to direct that persons from whom information is sought in the course of an enquiry must not disclose the fact that an investigation is being carried out: see, for example, s25(3a) and s28(3a). [The Act] contains a number of provisions enabling the PCA to require the provision of information and materials. A number of these powers are found in s28. A member of the police force is not permitted to refuse to answer questions or provide information on the grounds that the answer might tend to show that the member has committed a breach of discipline: s28(12).
[4] (2007) 96 SASR 581 at [8]-[9].
The reasons for such confidentiality requirements include the need to protect complainants and to encourage them to come forward in the knowledge that information provided will remain confidential. Further, the fact of an investigation may need to be kept confidential to avoid collusion between individuals under investigation and to prevent the destruction or concealment of relevant materials. The internal police processes under scrutiny and the methods of investigation undertaken by the PCA itself may also warrant confidentiality.[5]
[5] White at [46].
Olsson J in R v Ferri[6] set out the history of amendments made to s48 of the Act and the mischief that they were designed to remedy, in particular, the practice of defence counsel undertaking “fishing expeditions” by subpoenaing the records of the PCA in relation to police officer witnesses. This exercise was undertaken, usually, in the hope of finding discreditable material in the PCA records which could, in turn, be used to attack police testimony. Parliament has recognised that this practice is disruptive not only to the PCA and to the Police but also to the proper conduct of any resulting criminal trials. As a result, legislative changes were introduced to implement tighter confidentiality provisions.[7]
[6] [2002] SASC 217.
[7] Ferri at [13]-[14].
Operation of Sub-section 48(7) of the Act
Section 48 contains provisions preventing the divulging of information disclosed or obtained in the course of an investigation under the Act. Of particular relevance to this appeal is ss48(7) which provides:
(7)Despite any other Act or law, a person who is or has been the Authority or the Commissioner cannot be required to divulge information disclosed or obtained under this Act in the course of an investigation except where such a requirement is made—
(a) in proceedings before a court or the Tribunal in respect of –
(i) an offence; or
(ii) a breach of discipline,
relating to a matter the subject of the investigation; or
(b) in proceedings under the Royal Commissions Act 1917; or
(c) as required by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order.
In order to fall within the exception in ss48(7)(c) and obtain an order from a court, two conditions must be satisfied. The first requires the court to be satisfied that there are “special reasons requiring the making of an order” to divulge the information in question. In Goldsmith v Newman,[8] King CJ observed:
The expression “special reasons” is used in a number of statutes. It takes its colour necessarily from the context in which it is found and in particular from the purpose which the particular statutory provision is intended to serve.
[8] (1992) 59 SASR 404 at 409.
In R v Ferri,[9] Olsson J considered the meaning of “special reasons” within the context of ss48(7) of the Act:
[I]t establishes a requirement that an applicant for disclosure must establish the existence of a situation which … takes the case out of the mainstream of the obvious legislative intent that proceedings under the statute are to be confidential. The reasons must be special to the particular case, the features of which are out of the ordinary; and by reason of which it can also fairly be said that the interests of justice cannot adequately be served, absent the disclosure sought.
[9] (2002) SASC 217 at [15].
The meaning of the term “special reasons” in the context of s48(7) was also considered in White.[10] Doyle CJ said:
In the context of [the Act] and having regard to the sensitive nature of the functions of the PCA and of the internal investigation branch, "special reasons" must mean reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular or significant weight. And, as I have already said, they must be reasons that call for or require the making of an order.
It goes without saying that circumstances that are routine, and consequences that are a normal and inevitable result of the secrecy provisions, are unlikely to give rise to "special reasons".
[10] At [49]-[50] per Doyle CJ with whom on this issue Anderson J agreed at [109]-[111] and at [93] per Debelle J.
Turning to the second requirement provided for by ss48(7)(c), namely that “the interests of justice cannot adequately be served except by the making of such an order”, it would appear that this is designed to have a narrower application than the more common “in the interests of justice” condition to be found in legislation. Doyle CJ expressed the following view in White: [11]
This further provision requires consideration of the justice of the situation, which (at least in the context of civil or criminal proceedings) invites attention to the circumstances of the parties, and to the ability of the court to render justice. The Court must be satisfied that only by the making of an order can the interests of justice adequately be served, and that necessarily implies that unless the interests of justice require the making of an order, it is not to be made.
[11] At [52].
In White, Debelle J expressed the view[12] that the requirement of “special reasons” was additional in the sense that there must be some factor, over and above the interests of justice, which requires disclosure.
[12] At [93].
In making an order under ss48(7) of the Act the court does not exercise a discretion. It is to make an order if, but only if, the statutory criteria are satisfied.[13]
[13] White at [45].
In my view, this appeal can be determined on a relatively narrow basis. However, in deference to the fact that counsel submissions ranged over a number of issues I will first identify the more significant of those submissions.
The Plaintiff’s Submissions
The plaintiff asserted that there are inconsistencies in the documents that have been discovered by the defendant thus far and that other records are missing altogether. It is on this basis that documents are sought from the PCA in relation to the incident. Counsel for the plaintiff submitted that the conclusion of the Master that the applicant was “fishing” for documents was incorrect and that the plaintiff was merely seeking documents containing information directly related to the crash and the investigation undertaken by the PCA. Counsel maintained that these documents would not fall within the mischief that the legislative amendments to s48 were designed to remedy.
The plaintiff also challenged the Master’s finding that the affidavit of Anthony Wainwright,[14] sworn on 13 November 2007, was sufficient to determine the status of the documents held by the Authority.[15] It was argued that while the PCA can comment on how documents came into his possession, the legal status of the documents is a question of law to be determined by the court.[16]
[14] The person appointed as the Police Complaints Authority.
[15] Casebook p.55.
[16] Transcript p.18.
Counsel for the plaintiff drew attention to the fact that the affidavit stated that the documents were disclosed or obtained by the PCA under the Act, without any reference to whether they were obtained “in the course of an investigation”.[17] The plaintiff contended that if the information was obtained by the police and recorded in documents for a purpose other than the investigation of the complaint and only subsequently given to the PCA, then those documents ought not to be characterised as containing “information disclosed or obtained under [the Act] in the course of an investigation” and would, thus, fall outside the scope of ss48(7). The plaintiff submitted that White was distinguishable and did not prevent ss48(7) being construed to the effect that it only attaches to divulgence of information disclosed or obtained for the first time pursuant to an investigation under the Act.[18]
[17] Transcript p.18.
[18] Transcript p. 14.
A further complaint related to the fact that unlike the Act itself, the Wainwright affidavit referred to “documents” rather than “information” disclosed or obtained. It was submitted that these words are not identical in meaning and it is for the court to decide whether the documents held by the PCA actually contain information which falls within the terms of ss48(7).[19] Counsel submitted that disclosure, in the first instance, of the identity of documents held by the PCA would not be a divulgence of the information contained in such documents.[20]
[19] Transcript p.11.
[20] Transcript p.8.
Accordingly, the plaintiff challenged the decision of the Master that the provision of even a Kadlunga type list of documents by the PCA would fall foul of ss48(7). In making this determination, the Master relied on Minister for Community Services and Health & Anor v Carter and Gribbles Pathology Pty Ltd & Anor.[21] This case concerned a consideration of the non-disclosure provisions in s130 of the Health Insurance Act 1973 (Cth). Duggan J (with whom King CJ and Mohn J agreed) held that the Minister of Health enjoyed protection against compulsory disclosure of the documents in his possession:
[I]t is not necessary for the contents of the document itself to be communicated before it can be said that a matter or thing has been divulged. Information may be divulged by the identification and description of the documents in a list and if this information discloses the occurrence of events … then the person providing the list has divulged a “matter or thing”.
[21] FC SCSA, unreported judgment No S2450, 1 July 1990.
Counsel for the plaintiff submitted that the secrecy proscription, dealt with in Minister for Community Services and Health, that an officer shall not be required to divulge or communicate to a court “any matter or thing”, is broader than the more qualified “information disclosed or obtained under this Act in the course of an investigation” found in ss48(7). It was submitted that Duggan J’s comments regarding “divulgence” were set against the very specific and far reaching prohibitions of the Health Insurance Act and should not apply with respect to the quite differently worded statute presently under consideration.
In the event that the provision of a Kadlunga type list were to fall foul of ss48(7), the plaintiff asserted that a more limited list of documents comprising those brought into existence prior to the commencement of the investigation would nevertheless be permitted. It was argued that disclosure of this latter category of documents would satisfy the simple interest of justice test which applies to all non-party applications for disclosure and this, rather than the special reasons test, would be the appropriate assessment for the court to undertake in determining whether or not to order the provision of a list of documents of that description.[22] Once such a list were to be provided by the PCA, the court could then determine which documents or classes of documents fell within the immunity under s48(7).
[22] Transcript p.10.

In any event, submitted the plaintiff, a Kadlunga type list of all documents was justifiable on the basis that the plaintiff could satisfy the ss48(7)(c) test. It was submitted that special reasons existed in the present case because a court can only assess whether the PCA has rightly exercised the statutory privilege by reference to a list of documents properly described.
Defendants’ Response
The defendants submitted that the plain words of ss48(7) captured all of the defendants’ documents held by the PCA including documents created prior to or containing information coming into existence prior to, rather than only during, the course of an investigation.[23] Whilst information may come into existence purely as a consequence of an investigation, the purview of ss48(7) on its proper construction should not be so limited.[24]
[23] Transcript p.29.
[24] Transcript p.29.
The defendants also submitted that there is no material difference in this context between the use of the word “information” as compared with “matter or thing” and that Duggan J “equated” the two terms for the purposes of the Full Court’s decision in Minister for Community Services and Health.[25]
[25] Transcript p.25.
The defendants referred to Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (No 8)[26] where Bleby J explained that an application for non party discovery is subject to two considerations: first, the party seeking discovery must be able to show that the documents of which discovery is sought are “[directly] relevant to the proceedings” and second, the court must have regard to the impact of the making of any order on the orderly conduct of a trial.[27]
[26] [2002] SASC 20 at [9], [14].
[27] [2002] SASC 20 at [ 9].
The defendants argued that the plaintiff has not demonstrated the existence of any relevant documents in the possession of the PCA beyond those already disclosed in the proceedings. Counsel distinguished White in this respect because there it was generally assumed that there were a considerable number of discoverable documents on the PCA file.[28] It was submitted that Mr Joseph Wearing’s affidavit sworn 16 August[29] and relied on by the plaintiff did not rise above speculation and is therefore not sufficient to enliven the discretion available under Rule 60 as to non-party discovery.[30] Further, discovery was given by the defendants of directly relevant documents held on the PCA investigation file in November 2007.[31]
[28] Transcript p.26.
[29] Casebook, p.35.
[30] Transcript p.26
[31] Defendants' Summary of Argument dated 11 June 2008 at paragraph 8, affidavit of John Robert Connelly, sworn and filed 11 June 2008, paragraph 2.
In summary, the defendants submitted that the plaintiff is simply fishing and is now seeking to find out what, if any, further documents exist in the PCA file. The court cannot be satisfied that the plaintiff’s application is properly focused on directly relevant material; consequently, it is not in the interests of justice that an order for non-party discovery be made under Rule 60.[32]
[32] Transcript p.28
PCA’s Response
The PCA opposed any order for disclosure relying on the provisions contained within ss48(7) of the Act. It was asserted that the plaintiff bears the burden of demonstrating that each element of ss48(7) is satisfied and has failed to do so. Counsel for the PCA also relied on R v Ferri which recognises the clear policy objective of maintaining confidentiality of proceedings carried out under the Act.
Debelle J in White did not express any principle to the effect that only following the provision of a list of documents could a court make an assessment of whether the immunity granted by the Act is properly claimed. The PCA submitted that the circumstances in White were different in that the PCA and the Commissioner of Police there already had provided all of the information in their possession to the Crown Solicitor. Consequently, the Full Court did not need to address the question of whether ss48(7) applied to the earlier stage of disclosure. Accordingly, the PCA submitted, there is no authority for the view put by the Plaintiff that it is appropriate for a list of documents to be prepared in order for the court to assess whether there are special reasons for an order for the production of documents pursuant to ss48(7)(c) of the Act.
According to the PCA, the Master correctly relied on the Wainwright affidavit. Counsel also argued that the court should not be concerned with any notion of relative inequalities between the parties, and referred to Doyle CJ in White:
[The court should not proceed] on the basis that “the powers of the PCA and of the Commissioner must be exercised even-handedly. To take that approach would be to put unwarranted fetters on the power of the PCA and of the Commissioner under s48(7). In exercising their powers, they cannot be required or expected to treat the parties equally.”[33]
[33] White at [58].
Counsel for the PCA rejected the interpretation of ss48(7) relied on by the Plaintiff which drew a distinction between the discovery and the production of documents. It was submitted that the broad wording of the act, namely “divulge information disclosed or obtained under this Act in the course of an investigation”, does not accommodate such a distinction. The word “divulge” was said to be sufficient to capture both the question of discovery and production. Relying on this interpretation, the PCA submitted that special reasons must be demonstrated before a court can order even that a list of documents held by the PCA be provided.
Consideration and Determination of the Appeal
Before considering whether or not the requirements of Rule 60 are satisfied such that an order for non-party discovery should be made, it is necessary to determine whether or not the immunity provided by ss48(7) of the Act is properly available to the PCA. If it is available there will be no need to go on and consider the requirements of Rule 60. Leaving aside for the moment the exceptions provided for and, in particular, that set out in ss48(7)(c), the critical words of the proscription are as follows:
… the [PCA] cannot be required to divulge information disclosed or obtained under the Act in the course of an investigation.
The proscription refers to “information” not “documents” or some analogous concept. Most, if not all, of the “information” relevant to or concerning the motor vehicle accident in issue and whether or not contained in a document most likely was in existence in one form or another prior to the commencement of the PCA investigation. And this is so whether or not it was put into documentary or some analogous form prior to and independently of any requirement by the PCA, prior to but for the purpose of the PCA’s impending investigations or during and for the purpose of the PCA’s ongoing investigation. This is likely to be the case insofar as the “information” pertinent to any PCA investigation is concerned.
For this reason it would, in my view, be surprising if the immunity conferred on the PCA was intended to target only information first “disclosed or obtained … in the course of an investigation” in the sense of first coming into existence at the time of or for the purpose of an investigation. Such a construction would provide very limited scope to the immunity. It is not consistent with the general nature of the statutory language employed by the drafter of the section. If the immunity were to be so qualified it would be easy to have provided for this expressly by including “first” or something similar before “disclosed or obtained”. Furthermore, such a construction is not consistent with the policy and objectives underlying the immunity. The immunity attaches to the PCA or the Commissioner of Police and not to the “information” itself. It is important that the PCA and the Commissioner are free (subject to the statutory exceptions) to refuse to “divulge information disclosed or obtained …”, for the policy reasons summarised above, no matter when the information came into existence and no matter what form it is in once it comes into their hands. Whether or not the information also is in the possession of some other person and whether thereby discoverable or not, is of no moment. The PCA and the Commissioner having utilised the powers and procedures of the Act and obtained information in the course of an investigation cannot be required to divulge the information so obtained.
I reject the plaintiff’s submission that the immunity only embraces information disclosed or obtained for the first time in the course of an investigation. I do not stay to consider the practical difficulties that would confront the PCA in attempting to identify which of the information in its possession came into existence or was disclosed for the first time in the course of an investigation and which did not, other than to say that these difficulties would be significant. This is another reason why one would expect such a qualification to have been clearly and expressly provided for in the legislation.
It follows that the whole universe of information “disclosed or obtained” under the Act in the course of the PCA’s investigation, is subject to the immunity. The next issue to be addressed is the precise nature of the immunity. The PCA cannot be required “to divulge” such information. The plaintiff has asked, in the first instance for discovery only, not production. The plaintiff maintains that the provision of a Kadlunga type list of documents in the possession, custody or power of the PCA that is, a list containing sufficient detail to identify the nature and provenance of the documents listed without disclosing their content, would not comprise an improper divulgence of information. The defendants and the PCA dispute this.
The plaintiffs in White sought production of documents discovered by the defendants but said to fall within the ss48(7) immunity. In that matter the PCA had provided the Crown Solicitor (who acted for the defendants) with documents that had been disclosed to or obtained by the PCA in the course of an investigation it had conducted. The defendants discovered but maintained that they were not obliged to produce these documents given the terms of ss48(7).
The Full Court[34] held that, in the circumstances in which the defendants found themselves (through the Crown Solicitor) to be in possession of the documents, ss48(7) of the Act prohibited the defendants from producing for inspection the documents they had discovered. This aspect of the decision in White, that is, insofar as it concerns production, is not of direct assistance in deciding the present matter.
[34] Doyle CJ and Debelle J with Anderson J dissenting on this point.
As to the issue of discovery, the Chief Justice’s preferred position was that the documents in question were, in the circumstances, not in the possession, custody or power of the State of SA as defendant.[35] It would follow from this that the documents were not discoverable by that defendant in any event. However, His Honour accepted that the providing of the list of documents must be understood as an admission or assertion that the contested documents were in the possession, custody or power of the members of the SA Police also named as defendants in White. His Honour went on to hold that if he were to be wrong and the State was to be treated as having the documents in its possession, custody or power, it still would be necessary to consider whether or not the PCA had lost the ability to assert an entitlement under ss48(7) when considering the question of production for inspection.
[35] At [26].
In short, the Chief Justice did not need to and did not give any consideration to the question of whether or not the discovery by the defendants in White by way of provision of a list of descriptions of the documents in contest was itself within the immunity provided to the PCA by ss48(7).
Anderson J was dissatisfied with the discovery process and was of the view that there was insufficient information before the court to enable the various issues concerning the request for production to be properly determined.
Debelle J held that the documents in contest had been properly discovered by the defendants. In reaching this conclusion his Honour applied the conventional legal principles relevant to the obligation of a party to discover documents in its possession, custody or power. However, Debelle J was not asked to and did not expressly consider the issue of whether or not the mere provision of a Kadlunga type list might constitute a “[divulgence] of information disclosed or obtained … in the course of an investigation.”
In White the issue before the Full Court was one of production. The various considerations given to the question of discoverability with the exception perhaps of those by Anderson J were obiter dicta. Furthermore, none of their Honours expressly considered whether or not the provision of a list of documents by the defendants, of itself, divulged information within the meaning of ss48(7).
This issue was directly addressed, although in the context of a differently worded statutory provision by a differently constituted Full Court in Minister for Community Services and Health & Anor v Carter and Gribbles Pathology Pty Ltd & Anor.[36] Section 130 of the Health Insurance Act 1973 provided, in part, that certain persons (subject to exceptions):
shall not … be required … to divulge or communicate to a court any matter or thing …
Duggan J, speaking for the Full Court, said:
It is indisputable that such a list of documents … would, of itself, convey information concerning the existence of those documents and the fact that they were in possession of the relevant officers. Furthermore, other facts could be inferred from the descriptions of the relevant documents: for example, that a meeting took place between certain parties on a particular date.
[36] FC SCSA unreported judgment No S2450, 1 July 1990.
His Honour went on to consider whether information of the type he had been discussing came within the description of “a matter or thing” and held that it did. His Honour’s reasoning to this point started from the “indisputable” premise that such a list of documents would, of itself, convey “information”. His Honour went on to say that it is not necessary for the contents of a document itself to be communicated before it can be said that a matter or thing has been “divulged”. In my view the same reasoning applies to the present case. Whilst, strictly, I am not obliged to follow the reasoning and approach of the Full Court in Minister for Community Services, I do find it to be persuasive. The critical language of the statutory provision that was before Duggan J is not significantly different from that before me. In both cases the language employed is of wide import. The notion of divulging information is as wide as, if not wider than, that of divulging a matter or thing. This is implicit in the reasoning of Duggan J. I agree, with respect, with His Honour’s observation that:
Information may be divulged by the identification and description of the documents in a list and if this information discloses the occurrence of events such as the sending of a letter or the convening of a meeting or the existence of any other fact, then the person providing the list has divulged a matter or thing.
I find, therefore, that the provision of a Kadlunga list by the PCA, as sought by the plaintiff, would amount to divulging information and potentially fall within the s48(7) immunity. It is true that whether or not such information would bear the character “disclosed or obtained under this Act in the course of an investigation” ultimately can only be confirmed if and when such a list were to be prepared. However, in his affidavits sworn 4 September 2006 and 13 November 2007[37] on behalf of himself as the PCA, Mr Wainwright deposes to the view held that all of the documents in his possession either were disclosed or obtained under the Act and fell within the ss48(7) immunity or are irrelevant to the proceedings.
[37] Casebook p51.
I accept for the moment that Mr Wainwright has correctly characterised many if not all of the documents in his possession as, in effect, having been disclosed or obtained under the Act in the course of the PCA’s investigation. It follows that, unless the plaintiff can satisfy the court in accordance with the requirements of ss48(7)(c), the PCA cannot be required to provide by way of non party discovery a list of these documents in its possession, custody or power directly relevant to the issues between the plaintiff and the defendants.
Are there Special Reasons Requiring the Making of an Order
White is authority for the proposition that “special reasons” as used in ss48(7)(c) of the Act means reasons that are out of the ordinary, that relate to something distinct or particular about the case and that carry particular or significant weight. They must be reasons that call for or require the making of an order.[38]
[38] At [49] per Doyle CJ with whom Anderson J at [109]-[111] agreed and see also Debelle J at [93].
To my mind, the circumstances of the litigation in this matter and the matters deposed to in the Wearing affidavit, on behalf of the plaintiff, are no more than routine for litigation of this nature. The consequences for the plaintiff here of the application of the secrecy provisions of the Act and, in particular, ss48(7) are the normal and inevitable result of those secrecy provisions.[39]
[39] Cf; Doyle CJ in White at [50].
In paragraph 7 of his affidavit sworn 16 August 2006, Mr Wearing deposes to five matters which the plaintiff submits constitute special reasons. In my opinion, there is nothing ‘special’ in the sense White requires about any of these matters. Paragraphs 7.1, 7.2 and 7.4 arise as a consequence of the circumstances of the particular motor vehicle accident in issue and are not out of the ordinary. Paragraph 7.3 is solely a matter of speculation. Paragraph 7.5 is a discovery issue that commonly occurs during litigation; the discovery process will rarely, if ever, produce a comprehensive or consistent documentary trail. The plaintiff’s concerns here ordinarily will be taken up through the inter parties discovery process and during cross-examination of witnesses at trial.
It may be that there are documents in the possession of the PCA that might complete the discovery picture but this is not a special reason sufficient to justify depriving the CPA of its statutory immunity.
I agree with the learned Master that special reasons have not been made out. Accordingly, there is no power to make an order under ss48(7)(c) even for the provision by the PCA of a list of those documents in its possession obtained under the Act in the course of its investigation.
It is conceivable that Mr Wainwright’s characterisation of the documents in the PCA’s possession is in error and that the PCA has in its possession documents which are directly relevant to the issues between the parties but which do not contain information which was disclosed or obtained under the Act in the course of the PCA’s investigation, although this is unlikely. In any event, I am in no position to determine whether or not this is so as part of this application. Insofar as documents falling outside the immunity conferred by ss48(7) are concerned, I accept the submissions of counsel for the defendants that the plaintiff has not demonstrated that the PCA is in possession of any such documents that are directly relevant to the issues between the parties. There is therefore no basis for an order pursuant to Rule 60 relating to any documents not falling within the ss48(7) immunity.
It follows that the appeal from the decision of the Master on the plaintiff’s application (FDN11) is dismissed. I will hear from the parties as to the costs of this appeal.