Seven Network (Operations) Ltd v Dowling

[2018] NSWSC 1890

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Seven Network (Operations) Limited v Shane Dowling [2018] NSWSC 1890

Hearing dates:

27 September 2018

Decision date:

07 December 2018

Jurisdiction:

Equity

Before:

Rees J

Decision:

Dismiss application for stay; pursuant to s 61(3) of the CPA, dismiss the defendant’s motion filed on 12 January 2018; pursuant to r 31.54 UCPR, appoint solicitor to provide assistance; access orders with respect to subpoena packet S-5: see [87].

Catchwords:

CIVIL PROCEDURE — Stay of proceedings — Application for removal to High Court of Australia —Prospects of success — Balance of convenience — Stay refused.

 

CIVIL PROCEDURE — Interlocutory applications — Application to transfer to an interstate or federal court — Application to set aside subpoena — Want of due despatch — Applicant refused to move on motion — Application dismissed.

  CIVIL PROCEDURE — Subpoenas — Objection to production of documents or things — Self-represented defendant in civil proceedings — Objection by defendant to subpoena addressed to NSW Police —Privilege against self-incrimination — Court expert appointed to identify privileged material.

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 61(3), 67, 87, 142
Court Suppression and Non-Publication Orders Act 2010 (NSW), s 16
Evidence Act 1995 (NSW), ss 118, 119, 128
Judiciary Act 1903 (Cth), ss 40, 77U
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), s 5
Oaths Act 1900 (NSW), s 8(1), sch 4
Supreme Court Act 1970 (NSW), s 53(3)
Uniform Civil Procedure Rules 2005, rr 1.3, 12.7, 31.54, 33.5, 33.8, 33.9

Cases Cited:

Attorney General v Markisic [2011] NSWSC 1436
Blanch v Deputy Commissioner of Taxation [2004] NSWCA 461
Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121
Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 393
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Griffin v Council of the Law Society of NSW [2016] NSWCA 275
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125
Heedes v Legal Practice Board [2005] WASCA 166
Ingot Capital Investments v Macquarie Equity Capital Markets (No 7) [2008] NSWSC 199
Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Lange v Australian Broadcasting Commission (1997) 189 CLR 520
Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372
Monteiro v State of New South Wales (No 4) [2016] NSWSC 1626
Pascoe v Divisional Security Group Pty Ltd [2007] NSWSC 211
Prothonotary of the Supreme Court of New South Wales v Dowling [2017] NSWSC 392
Re Colina; ex parte Torney (1999) 200 CLR 386
Seven Network v Dowling [2018] NSWSC 1803
Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300
Wyong Shire Council v Neuman [2008] NSWSC 1295

Texts Cited:

Cross on Evidence (looseleaf, LexisNexis Australia)
Gray, “Contempt and the Australian Constitution – Part I” (2017) 22 Journal of Judicial Administration 3

Category:

Procedural and other rulings

Parties:

Seven Network (Operations) Limited - First Plaintiff
Seven West Media Limited - Second Plaintiff
Shane Dowling - Defendant

Representation:

Counsel:
M Cowden - Plaintiffs
Shane Dowling - Self-Represented

  Solicitors:
Addisons Lawyers - Plaintiffs

File Number(s):

2017/116771

Judgment

1. HER HONOUR:   In this matter, the defendant filed a motion seeking orders that an interstate judge be appointed to hear the matter or that the matter be transferred to the Federal Court of Australia, and that a subpoena be set aside. The motion came before me for hearing twice. On the first occasion, the defendant sought to adjourn the hearing of the motion, and I granted that application. On the second occasion, the defendant sought a stay of the proceedings and declined to deal with his motion.

2. Before determining the defendant’s application for a stay and what, if anything, should be done with the motion, it is necessary to set out the procedural history of this matter. From time to time, the defendant referred to other proceedings in the Common Law Division of this Court which I understand concerned contempt proceedings in respect of comments made by the defendant about judicial officers (Common Law Proceedings). I will also refer to those proceedings where necessary.

PROCEDURAL HISTORY

3. In 2014, the plaintiffs had a dispute with an employee. Following mediation, the plaintiffs and the employee entered into a Deed of Release, the terms of which were confidential and included an agreement by the employee not to publish confidential information. The employee did not comply with the terms of the deed. In 2017, the plaintiffs commenced proceedings against the employee seeking orders restraining the employee from using confidential information in breach of the deed (Employee Proceedings). On 13 February 2017, interim orders were made by McDougall J restraining the employee from using confidential information in breach of the deed.

4. On 20 February 2017, the defendant issued a tweet in respect of the Employee Proceedings. On 21 February 2017, McDougall J extended the interim orders concerning the employee and the defendant issued a second tweet on the subject. On 22 February 2017, the plaintiffs became aware of a website which contained commentary on the Employee Proceedings (New Website). On 28 February 2017, an existing website associated with the defendant published the Deed of Release (Old Website).

5. In April 2017, the defendant sent an email to the plaintiffs’ directors and lawyers posing various questions about the employee and then tweeted his email. The defendant published McDougall J’s orders, his email to the plaintiffs and his tweets on the Old Website. These items also appeared on the New Website. The plaintiffs’ solicitors asked the defendant to delete the tweets, and the defendant agreed to do so.

6. On 19 April 2017, the plaintiffs commenced these proceedings against the publisher of the New Website, seeking various orders restraining the use of material which essentially derived from the Deed of Release. On 19 April 2017, orders were made by Ward CJ in Eq for interim orders restraining the publisher of the New Website from using or disclosing the confidential information and ordering the removal of an article from the New Website. Apparently, these orders were not complied with. At this time the publisher of the New Website had not been ascertained with any certainty and was simply referred to in the pleadings and orders as “Publisher X”.

7. On 23 June 2017, the matter came before Slattery J for directions. The plaintiffs had by then formed the view, rightly or wrongly, that the defendant was the publisher of the New Website. The defendant denies this emphatically. The plaintiffs sought leave to amend their summons to refer to the defendant instead of “Publisher X”. His Honour granted leave to amend the summons to name the defendant.

The Subpoena

8. In the meantime, on 21 June 2017 the NSW Police executed a search warrant at an address in Bondi Beach. The plaintiffs came to learn of this fact from comments made by the defendant on his website. On 5 July 2017, at the plaintiffs’ request, a subpoena was issued to the Commissioner of Police for production of the following material (the Subpoena):

1.   Documents recording the results of any inspection or analysis of the computers, hard drives, electronic devices or storage devices obtained pursuant to a search warrant executed on the address [at] Bondi Beach … on or around 21 June 2017.

2.   Any computers, hard drives, electronic devices or storage devices obtained by NSW Police, or copies of any information found on same-made by NSW Police, as a result of the search warrant executed on the address [at] Bondi Beach … on or around 21 June 2017.

The Subpoena required documents to be produced to the Court by 9.00am on 13 July 2017. The Commissioner of Police produced a computer hard drive, which was labelled “S-5” by the Exhibits Office (the Hard Drive).

9. On 11 July 2017, a copy of the Subpoena was served on the defendant. Rule 33.5(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) requires a party at whose request the subpoena is issued to serve a copy of the subpoena on the other parties to the proceedings “as soon as practicable after the subpoena has been served on the addressee”. Ordinarily, providing the defendant with the subpoena on 11 July 2017 would not be considered “as soon as practicable” after the subpoena was served on the Commissioner of Police, although I do not know how easy or difficult it was to serve the defendant at that time.

10. On 14 July 2017, the matter was listed for return of subpoena before a Registrar of this Court. There was no appearance by the defendant. The Registrar made a general access order in respect of the Hard Drive. The matter was stood over for further return of the Subpoena on 17 July 2017 at 9.00am. The plaintiffs arranged for the Hard Drive to be uplifted and copied by approved copiers. Later on 14 July 2017, NSW Police produced a laptop in further answer to the Subpoena. The Exhibits Office identified the laptop as “S-6” (the Laptop).

11. On the evening of Sunday, 16 July 2017, the defendant sent an email to the Associate to Her Honour Justice McCallum, a judge of the Common Law Division of this court, requesting an urgent hearing on 17 July 2017 to stop the plaintiffs having access to the Laptop, and for an order that the Laptop be returned to him. Apparently, the defendant sent this request to her Honour as she had carriage of two other matters in which the defendant was a party.

12. At 9.00am on 17 July 2017, at the further return of the Subpoena before the Registrar, the plaintiffs sought access to the Laptop. The defendant appeared and opposed the order. After argument, the Registrar made the following order for access:

Access only to an approved copying firm, possibly Law In Order, for 7 days. General access to the other parties thereafter.

The Court further orders that the laptop computer produced to the Court in Packet S-6 is to be returned to Mr Dowling upon a copy of the hard drive being retained by the Court. That laptop is to be returned to Mr Dowling within 7 days if the copy of the hard drive is provided.

13. At 11.10am on 17 July 2017, the defendant appeared before McCallum J, who was sitting as Duty Judge in the Common Law Division. Her Honour explained to the defendant that there are two divisions in the Supreme Court, being the Common Law Division and the Equity Division. The defendant asked her Honour to deal with the matter given that she had carriage of the two other matters in which the defendant was a party. The defendant informed her Honour that the material on the Laptop was relevant to his conduct of those proceedings as it had “all my data, it’s got privileged information etc”. Her Honour agreed to deal with the defendant’s application to review the access orders made by the Registrar in respect of the Laptop. At the conclusion of the hearing later that day, her Honour directed the plaintiffs to endeavour to contact the person currently in possession of the Laptop and request that person to make arrangements to have the Laptop returned to her Honour’s Associate. Her Honour also vacated the order for access made by the Registrar that day in respect of the Laptop. At 4.57pm, the defendant signed a receipt acknowledging receipt of the Laptop from her Honour’s Associate.

14. On Tuesday 18 July 2017 at 2.00pm, her Honour gave an ex tempore judgment varying the Registrar’s orders to return the Laptop to the defendant and vacate the order for general access with respect to the Hard Drive: Seven Network v Dowling [2018] NSWSC 1803. The plaintiffs’ senior counsel informed her Honour that a copy of the Hard Drive had been made by approved copiers and delivered to the plaintiffs’ solicitors, who had made a further copy but not inspected the Hard Drive. The plaintiffs’ counsel offered to provide both copies of the Hard Drive to her Honour. Her Honour noted the following:

The plaintiff has made two copies of those documents, but has not inspected them. The plaintiff proposed, and I agree, that those documents should not be inspected by the plaintiff until some procedure has been put in place to enable Mr Dowling to argue what he appears to have intended to argue all along – namely, that the subpoena ought to have been set aside before documents were produced. To that end, I propose to direct the plaintiff to return both copies of S5 to be held by the Court separately from packet S5 itself. There will be no order granting access to the copies. They will be preserved by the Court in their current form.

Her Honour stood the matter over before the Equity Duty Judge on 24 July 2017.

15. The two copies of the Hard Drive remain in an envelope in the Court’s file marked “No access is to be granted without leave of the Court”. As such, of the two items produced by NSW Police, one, the Laptop, was returned to the defendant and the second, the Hard Drive has been copied but the copies are with the Court and the question of access to the Hard Drive is yet to be determined.

Contempt Motion

16. On 21 July 2017, the plaintiffs filed a motion seeking a declaration that the defendant was in contempt of court for breaching the orders made by the Court on 19 April 2017 and related orders (Contempt Motion). On 24 July 2017, the matter came before the Equity Duty Judge Rein J for directions. There was no appearance by the defendant. Directions were made for the plaintiffs to serve a statement of claim, evidence in support of the Contempt Motion and for the defendant to file a defence. In addition, his Honour made the following orders in respect of the Subpoena:

Direct that the defendant is to file and serve any notice of motion in relation to the subpoena (whether to set it aside in whole or in part or otherwise), together with any evidence in support of such motion, by 18 August 2017, should he wish to do so;

His Honour stood the matter over to 25 August 2017.

17. On 9 August 2017, the defendant was sentenced to four months imprisonment. On 25 August 2017, this matter came before Pembroke J for directions. There was no appearance by the defendant as he was in gaol. His Honour made directions for the filing of a defence and affidavits by the plaintiffs in support of the Contempt Motion and, in respect of the Subpoena:

Direct that the defendant is to file and serve any notice of motion in relation to the subpoena (whether to set it aside in whole or in part or otherwise), together with any evidence in support of such motion, by 29 September 2017.

The plaintiffs were ordered to provide a copy of the orders to the defendant within 7 days and the matter was listed for directions on 3 October 2017 before the Registrar.

18. On 28 September 2017, the Court received a letter from the defendant seeking summary dismissal of these proceedings given the plaintiffs’ alleged contempt:

The applicants are in contempt of the court orders as they were ordered to serve me a copy of the orders within 7 days. They did not serve a copy until the 12/9/17. The applicants should be charged with contempt.

19. On 3 October 2017, the matter was listed for directions before the Registrar. There was no appearance by the defendant who remained in gaol. The Registrar made various orders in respect of the Contempt Motion and also made the following order in respect of the Subpoena:

The defendant to file and serve any motion in respect to the subpoena issued to the Commissioner of Police either to set aside or otherwise by 24 October 2017. Unless such a motion is filed the Court will consider orders on 7 November 2017.

The defendant was also directed to file and serve any motion regarding a strike out or dismissal of the claim by 24 October 2017, presumably prompted by the defendant’s letter to the Court. The Contempt Motion was listed for hearing before Kunc J on 30 January 2018. The matter was also stood over to 7 November 2017 for directions.

20. On 5 November 2017, the defendant sent an email to the Associate of His Honour Justice Kunc seeking a stay of the proceedings until he was released from gaol. The defendant also sent a letter to His Honour in similar terms. On 7 November 2017, the Registrar stood the matter over to 11 December 2017 before His Honour Justice McDougall, presumably as a result of the defendant’s correspondence asking for a stay. On 11 December 2017, McDougall J adjourned the matter until 13 December 2017.

21. On 13 December 2017, the defendant appeared and sought an adjournment having regard to his recent release from gaol. The plaintiffs sought access to the Hard Drive as the plaintiffs wished to rely upon the contents of the Hard Drive in support of the Contempt Motion listed for hearing on 30 January 2018, to which the defendant said to his Honour:

Shouldn’t I have a look at it first? It might be a case I don’t object.

22. Given the Contempt Motion listed for hearing on 30 January 2018 before Kunc J, McDougall J made the following orders:

1.   Stand the subpoena over to his Honour’s list on 30 January 2018.

2.   Direct that any motion to set aside the subpoena be filed and served, together with the supporting affidavit by 12 January 2018 and that the notice of motion be made returnable before Kunc J on 30 January 2018.

3.   Direct that any affidavit in compliance be filed and served by 24 January 2018 on the subpoena question.

Transfer Motion

23. On 12 January 2018, the defendant filed a motion (Transfer Motion) seeking orders that:

1. an interstate judge be appointed to hear the matter or that the matter be transferred to the Federal Court of Australia; and

2. the Subpoena be set aside.

together with an affidavit in support of the motion. The affidavit contained material from the Common Law Proceedings. As I understand it, the material was proffered by the defendant as indicating that, by reason of remarks that he had made about judicial officers and the Common Law Proceedings, these proceedings could not be heard by any judge of this Court.

24. On 30 January 2018, the Contempt Motion and Transfer Motion came before his Honour Kunc J. The defendant appeared and sought an adjournment to get legal advice. The plaintiffs consented to an adjournment for that purpose but pressed for access to the Hard Drive. The plaintiffs’ counsel said he anticipated that the Hard Drive may contain material relevant the Contempt Motion and was also relevant to the substantive proceedings. The transcript contained the following exchange:

DEFENDANT: One thing I did offer last year was “Okay, let me have a look at the file.” If there’s nothing there I object to, they can have it. I don’t care.

… SMARK: -- we agree.

HIS HONOUR: Sometimes the sun shines in my court, and it’s shining at the moment and they agree.

DEFENDANT: Yes.

HIS HONOUR: So I will make an order in due course for access to you.

25. His Honour noted that, as the defendant was not a lawyer and was not subject to the duties that a lawyer normally had to the Court, an appropriate regime needed to be in place so that, when the defendant inspected the Hard Drive, the documents remained under the control of the Court. The plaintiffs said that they were willing to pay the costs of having a court approved copier make a complete copy of the Hard Drive for the defendant. The defendant expressed disquiet about the Hard Drive leaving the Court to be copied as this created an opportunity for other people to get copies of the Hard Drive. His Honour invited the parties to discuss a practical way to enable the defendant to inspect the Hard Drive and to inform his Honour’s chambers of what agreement or arrangements were reached. The defendant suggested that an option might be that he come in with his own laptop and charger and sit and have a look at it:

My personal gut feeling is there is quite possibly nothing I am going to object to. But I am not a criminal expert, and I have got lawyers that should get appointed soon…

26. After further discussion, the defendant decided that he would not inspect the Hard Drive until he had obtained legal advice. His Honour made the following orders:

1.   Directs the proceedings, including the proceedings generally, the plaintiffs’ motion filed 21 July 2017 and the defendant’s motion filed 12 January 2018 are all stood over for further directions before Kunc J at 9.30am on 1 March 2018.

2. Notes that the Commissioner of Police does not object to access to the parties being granted to subpoena packet S5.

3. Notes that the plaintiffs do not object to the defendant having first access to the subpoena packet S5.

4. Directs that if the defendant wishes to exercise his right of first access to subpoena packet S5, the defendant has leave by email to the Associate to Kunc J to propose directions which the Court should make for him to exercise that right.

27. On 28 February 2018, the defendant communicated with the Associate to His Honour Kunc J advising that he had just been approved for Legal Aid and Legal Aid was in the process of briefing counsel. The defendant asked that the hearing the next day be adjourned. His Honour adjourned the hearing to 10 April 2018.

28. On 10 April 2018, the defendant appeared but without legal representation. The defendant informed his Honour that his legal representation had in fact been approved for another matter which had resolved. The plaintiffs’ counsel sought again to formulate a means by which the defendant would inspect the Hard Drive. The plaintiffs’ counsel indicated that the contents of the Hard Drive were thought to contain information which might show that the defendant was the author of the publications which are the subject of the proceedings, and also the subject of the Contempt Motion. The defendant added:

I did bring my laptop to check the packet 5. I can do it today.

29. The parties then discussed the defendant inspecting the Hard Drive as follows:

…HIS HONOUR: Before we come to your motion and the plaintiff’s motion, do you need to inspect the subpoena packet?

DOWLING: The motion is to have it transferred to another court and I think, transferred to another court or have an interstate judge brought in. I think we should, I don’t know if I need to. I don’t think I need to. That is probably an issue for the next court or the next judge.

HIS HONOUR: No, it is an issue for you. If you want to look at material on subpoena, you are entitled to. It seems to have been something you have raised on earlier occasions. Now, if you want to inspect the material I will make some directions to make sure that that happens. If you don’t want to inspect the material I will make some directions to get the motion or motions ready for hearing

…

SMARK: We would ask if Mr Dowling does not wish to exercise his right at first access, I didn’t understand him [to] say definitely one way or the other.

HIS HONOUR: That is correct, I didn’t understand him to go one way or the other either.

SMARK: Once that matter has been resolved, that election has been made, we would ask that the plaintiffs have a right of access. That is discrete matter and that would seem to be able to be done in short order.

…

30. Further discussion ensued as to whether prayer 1 of the Transfer Motion should be heard first, being the application to transfer the proceedings to another court, or whether the Transfer Motion and the Contempt Motion should be heard together. The following exchange occurred:

HIS HONOUR: I should go back a step. We will go back a step. Do you wish to exercise your right to inspect subpoena packet S5?

DOWLING: I certainly do but I think that should be put after this is heard because if it goes to another court it will be dealt with there.

HIS HONOUR: Do you object in the meantime to the plaintiffs having access to subpoena packet S5?

DOWLING: Yes, I do, because if you see order 2 that I am seeking, is that the subpoena at least be set aside as an abuse of process.

HIS HONOUR: I thought that had gone away, that you were simply content, as long as you had first access, the problem of the subpoena would go away.

DOWLING: No, why would it, if I have a look at it and it has got personal information on there that they should not have, what they are doing is a matter of a fishing expedition.

SMARK: I am not seeking to shut Mr Dowling out of the right to move to set aside the subpoena but the anterior step is for him to have a look at the documents. He is obdurately declining to look at them one way or the other. Now if he wishes to see them, he should now agree to the terms on which that access is permitted, and if he has no objection we can see them, if he does not, we can take another course.

HIS HONOUR: Yes

DOWLING: I can do that, your Honour, but the point is, if I get up on number 2, it has been a waste of my time in the meantime.

HIS HONOUR: Mr Dowling, I am not going to allow the prayers in this motion to be approached like a buffet where we have a nibble at order one, and then if we have not had enough to eat we move to order 2. This is an a la carte menu where the whole thing has to be dealt with in one go. You need to be in a position to argue both for your transfer and presumably there is still some point no matter what happens in relation to order one, dealing also with the subpoena point.

DOWLING: Okay, [that] we can organise, I came with my laptop today so I can do it now if you want to give me the time.

HIS HONOUR: I will give you leave to inspect that material. We will need to work out what happens as a result of your inspection because if there is, and what I would expect, Mr Dowling, there may be material, I withdraw that.

I don’t know where you are going to want to take it after you have inspected the contents. You may come to the view that there is nothing there, there is no problem with the other side inspecting it and the whole thing may go away but step 1 is for you to inspect the documents. When can you do that by?

DOWLING: Well, I can do that right now. I don’t know if there is much on there. If there is very little on there, well, it would probably take me five minutes to look at it.

31. Further lengthy discussion ensued as to when suited the defendant to inspect the Hard Drive and whether he wished to put on any further affidavits in support of the Transfer Motion. Ultimately, the defendant suggested:

How about 2[pm], based on that police file only taking a few minutes to look at. If it is a mile long, well I don’t know but if it is only short it will only take me five to ten minutes but if it is a two to three hour job, leave it at 2, if it is too extensive I can contact the parties.

32. His Honour agreed, but then the defendant repeated his contentions that the Subpoena should be set aside completely. The hearing continued:

DOWLING: The thing is, I don’t believe they are entitled to access it because the original charge which enabled the police to raid my house, was malicious prosecution, was withdrawn. An open and shut case of malicious prosecution. Open and shut case of malicious prosecution.

HIS HONOUR: Mr Dowling, if you want to take that position, then that would suggest that you have no need to look at what is on that file. So you decide what you want to do, if you just want to say, point blank, they are not allowed to look at it and it should be set aside, that is your right and I will proceed to make directions about that.

DOWLING: Yes that is the way to go, your Honour.

SMARK: It is for Mr Dowling to take the course that he wishes to take.

33. As a result, his Honour indicated he would not make an access order. Rather, the Transfer Motion would be heard before the Contempt Motion. His Honour clarified whether, in light of the defendant’s motion to transfer the proceedings to another court, the defendant objected to any particular judge in the Equity Division hearing the Transfer Motion.

HIS HONOUR: … The matter is in Equity, so may I take it then that you have no objection to any judge in the Equity Division dealing with this matter.

DOWLING: At the end of the day, no, based on my application, obviously I have no objection to anyone in this Court dealing with any of these matters going forward, someone has to hear it in the first place.

34. Further discussion ensued between the parties as to an appropriate timetable for the defendant to put on any further evidence and submissions in respect of the Transfer Motion. Eventually, his Honour made the following orders:

1.   The defendant is to serve any additional evidence on or before 4 May 2018 in relation to both prayers 1 and 2 of the defendant’s Notice of Motion filed on 12 January 2018.

2.   The plaintiff is to serve any evidence in response on or before 18 May 2018.

3.   Any evidence in reply and an outline of submissions is to be served by the defendant on or before 4 June 2018.

4.   The plaintiff is to serve an outline of submissions on or before 11 June 2018.

5.   The matter is listed before a Registrar in Equity on 13 June 2018 for the purpose of a hearing date being fixed in relation to prayers 1 and 2 of the defendant’s notice of Motion filed 12 January 2018.

6.   There to be liberty to restore before the Registrar to any party on 3 days’ written notice.

7. The Court notes that today Mr Dowling was given the opportunity, if he wished, to exercise his right of first access to subpoena packet S5, however Mr Dowling elected not to do so in favour of pressing his application that the subpoena to the Commissioner of Police be set aside.

35. On 12 June 2018, the defendant filed a further affidavit in support of the Transfer Motion. The affidavit largely duplicates the material accompanying his first affidavit.

36. On 13 June 2018, the matter came before the Registrar, as Kunc J had ordered that it would. The defendant appeared. The Registrar listed the motion for hearing at 10.00am on 13 September 2018 with an estimated hearing time of one day. The Registrar made orders for the parties to file any further evidence and submissions in respect of the Transfer Motion, including that the defendant file and serve any evidence and submissions in reply by 25 July 2018.

37. It is the practice of the Equity Division, as set out in Supreme Court Practice Note SC Eq 1, “Supreme Court Equity Division – Case Management in the Equity General List” that Court Books are prepared for the hearing of interlocutory applications. The usual order for the hearing of interlocutory applications is:

No later than 5.00pm on the Wednesday before the hearing date, the parties are to deliver to the Associate to the Applications List Judge a paginated Court Book containing the evidence, any objection thereto and a short outline of submissions.

38. Ordinarily, the Court Book is prepared by the applicant on the motion, which in this case would be the defendant. A Court Book was not provided to my chambers and, observing that the defendant was self-represented, my Associate contacted the clerk of the plaintiffs’ senior counsel and asked that a Court Book be prepared. On 10 September 2018, the plaintiffs’ solicitor emailed my Associate, copying the defendant, advising that there may be difficulties making the Court Book available to the defendant as he was in gaol and had indicated in separate proceedings in the Common Law Division that he did not wish to be required to attend court in person but rather by audio visual link. Nonetheless, the plaintiffs’ solicitors agreed to compile and send a Court Book to the gaol. On being informed that the defendant was in prison, I made orders for the defendant to appear by audio visual link.

39. On 11 September 2018, a Court Book was delivered to the prison. On 12 September 2018, the defendant was provided with the Court Book. The Court Book contained the following material:

Document	Filed on behalf of	Date
Summons	Plaintiffs	19 April 2017
Plaintiffs’ motion	Plaintiffs	19 April 2017
Affidavit of plaintiffs’ solicitor and confidential exhibit	Plaintiffs	19 April 2017
The Subpoena	Plaintiffs	5 July 2017
Contempt Motion	Plaintiffs	21 July 2017
Statement of Claim	Plaintiffs	31 July 2017
Affidavit of plaintiffs’ solicitor	Plaintiffs	11 December 2017
Transfer Motion	Defendant	12 January 2018
Affidavit of defendant in support of Transfer Motion	Defendant	12 January 2018
Transcript before Kunc J	30 January 2018
Transcript before Kunc J	10 April 2018
Further affidavit of defendant in support of Transfer Motion	Defendant	12 June 2018
Written Submissions	Plaintiffs	26 July 2018

First hearing

40. On 13 September 2018, the hearing of the Transfer Motion was listed before me. The defendant appeared by audio visual link. The defendant informed me that he did not have the Court Book with him in the video booth and had only been given 10 minutes’ notice of the hearing by prison officers. The defendant said he was not in a position to proceed with the hearing and would not be in a position to do so until he was released from gaol. I indicated that I was not minded to adjourn the hearing of the Transfer Motion given the procedural history of the matter. The defendant said he had been denied natural justice, did not have access to all of his documents, was otherwise engaged in preparing for other court proceedings, repeated his remarks about judicial officers and lay on the floor of the video booth. The court adjourned until a correctional officer provided the defendant with the Court Book in the video booth and he was given an opportunity to resume his seat.

41. After the adjournment, the defendant declined to participate in the proceedings and declined to identify the affidavits which he relied upon in support of the Transfer Motion. The defendant sought an adjournment of the hearing of the Transfer Motion until he was out of gaol which “should be 21 September 2019” which was, obviously, a year away. The plaintiffs indicated they agreed to an adjournment of two weeks. I agreed to adjourn the motion to 11.30am on 27 September 2018. I made the following orders:

1.   On the defendant’s application for an adjournment of the hearing of his motion filed on 12 January 2018, and with the consent of the plaintiffs to that application, I adjourn the hearing of the motion to 11.30am on 27 September 2018.

2.   I grant leave to the defendant to provide any written submissions in support of his motion by Monday 24 September 2018. Those submissions may be facsimiled to my chambers and copied to the plaintiff’s legal representatives.

3.   I reserve the costs of today.

42. After the conclusion of the hearing, the orders which I had made were sent by facsimile to the defendant, and the prison confirmed that the orders had been provided to the defendant at 12.14pm.

Application for Removal

43. On 23 September 2018, the defendant faxed to my chambers an Application for Removal to the High Court of Australia. The defendant noted in his cover email:

Given the application, the matter before your Honour should be stayed until the High Court of Australia has handed down a judgment on the application for removal.

The basis for the application was, essentially, the same as prayer 1 of the Transfer Motion.

Second hearing

44. On 27 September 2018, the Transfer Motion was listed before me at 11.30am for hearing. The defendant appeared by audio visual link. I proposed to treat the Application for Removal as an application for a stay and to deal with the application for a stay and the Transfer Motion by receiving evidence and submissions from the parties on both applications; reserving judgment on both applications; and, in the event that grant the stay, giving judgment on the stay application only. The defendant refused to deal with Transfer Motion until he was released from gaol. He said he was being denied natural justice and his human rights. He repeated his remarks about judicial officers.

45. The plaintiffs were not aware of the Application for Removal but agreed to proceed nonetheless. I heard, firstly, the defendant’s application for a stay and then endeavoured to deal with the Transfer Motion. The defendant again indicated in no uncertain terms that he was not going to proceed on his motion. I informed him that, if he refused to participate in the hearing of the Transfer Motion, I may dismiss the motion because he declined to progress it. I asked him to identify the evidence that he relied upon in support of the Transfer Motion and he declined to do so. He declined to deal with the Transfer Motion.

46. The plaintiffs sought dismissal of the Transfer Motion and an order for general access in respect of the Hard Drive. I expressed a concern that there may be material on the Hard Drive which was subject to a claim for legal professional privilege and I did not wish that any privilege be lost by granting general access. I suggested that the court might appoint an expert in the first instance to identify any privileged material so that the defendant’s privilege was preserved. The plaintiffs did not oppose the defendant having first access to identify privileged material nor to appointing an expert who would attend to this task given that the defendant was in prison and not legally represented. The defendant then made submissions which were largely not directed to the matters being discussed at the time but observations of a more general nature.

Application for a Stay

47. The fact that the defendant has filed an Application for Removal under section 40 of the Judiciary Act 1903 (Cth) with the High Court of Australia does not, without more, stay these proceedings. The Court does not have a specific statutory power to stay the proceedings where an Application for Removal has been filed with the High Court, unlike the power to stay proceedings in the event of an appeal to the High Court (section 77U, Judiciary Act), the power of the Court of Appeal to order a stay of the decision below (rule 51.44, UCPR) or where proceedings are transferred between the Local Court, District Court or Supreme Court of New South Wales (section 142, Civil Procedure Act 2005 (NSW)). In each of these situations, a stay does not automatically follow simply by reason of having lodged an appeal or having transferred a case from one court to another.

48. The Court has a general power to order a stay under section 67, Civil Procedure Act:

Subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.

49. In deciding whether to stay proceedings, the Court must weigh the prejudice to each party in light of the prospects of success in the higher Court. In Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681, Brennan J said at 685:

In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

50. A case which has some similarities to the one before me is Griffin v Council of the Law Society of NSW [2016] NSWCA 275. Mr Griffin, a solicitor, appealed to the Court of Appeal against a finding of professional misconduct made by the NSW Civil and Administrative Tribunal of New South Wales (NCAT) and also filed an Application for Removal to the High Court. Enforcement of NCAT’s orders was stayed by the Court of Appeal pending determination of the appeal to it. However, a stay of proceedings in the Court of Appeal in light of the Application for Removal was refused. His Honour Emmett AJA considered the prospects of success in the High Court, the delay in bringing the removal proceedings and the costs that would be occasioned by vacating the hearing of the appeal: at [33]–[35].

50. Adopting these principles, I do not think there is a substantial prospect that that the High Court will accede to the defendant’s Application for Removal. Section 40 of the Judiciary Act provides (emphasis added):

(1)    Any cause or part of a cause arising under the Constitution or involving its interpretation that is at any time pending in a federal court other than the High Court or in a court of a State or Territory may, at any stage of the proceedings before final judgment, be removed into the High Court under an order of the High Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Court thinks fit, and shall be made as of course upon application by or on behalf of the Attorney‑General of the Commonwealth, the Attorney‑General of a State, the Attorney‑General of the Australian Capital Territory or the Attorney‑General of the Northern Territory.

(2)    Where:

(a)   a cause is at any time pending in a federal court other than the High Court or in a court of a Territory; or

(b)    there is at any time pending in a court of a State a cause involving the exercise of federal jurisdiction by that court;

the High Court may, upon application of a party or upon application by or on behalf of the Attorney‑General of the Commonwealth, at any stage of the proceedings before final judgment, order that the cause or a part of the cause be removed into the High Court on such terms as the Court thinks fit.

52. It is not clear to me that these proceedings include a cause “arising under the Constitution or involving its interpretation” nor “a cause involving the exercise of federal jurisdiction” by the Supreme Court of New South Wales. The Application for Removal does contain the word “constitution” and cites Lange v Australian Broadcasting Commission (1997) 189 CLR 520. It may be that the defendant has in mind an argument concerning the implied freedom of political communication, or perhaps an argument that the common law of contempt is an impermissible burden on that implied freedom, although the Application for Removal does not say so: see Gray, “Contempt and the Australian Constitution – Part I” (2017) 22 Journal of Judicial Administration 3. Even if that is what the defendant has in mind, it is not clear to me how such an argument arises out of these proceedings, which concern whether “Publisher X” has published material in breach of confidentiality obligations arising from the Deed of Release between the plaintiffs and their employee.

53. Rather, the basis of the Application for Removal is, as I understand it, that by reason of the Common Law Proceedings, these proceedings cannot be heard by any judge of this Court. The disqualification of judges is not a matter of a constitutional character: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300 at [7]–[8]. In any event, the weight of authority suggests that such an application will likely fail. A not dissimilar argument was considered by the High Court in Re Colina; ex parte Torney (1999) 200 CLR 386, which concerned contempt proceedings in the Family Court of Australia. The facts were outlined by Gleeson CJ and Gummow J at [7]:

It is alleged that, during July and August 1998, Mr Torney demonstrated outside the Family Court building in Melbourne, distributing written material to members of the public, and making abusive remarks about the Family Court and its members.  Some of the comments attributed to Mr Torney were expressed in very strong terms, blaming the court and its judges for the deaths of people and for instances of child abuse, describing the judges as being “terrorised” by women’s organizations, and claiming that “decisions are being made on a daily basis destroying the lives of innocent children”.  The literature said to have been handed out by Mr Torney complained of bias against men.  It asserted that if people knew the nature of orders made by judges, the likely consequence would be violent action towards the judges.  Judges were said to make decisions “based on their twisted morals” and are “protected by … secrecy”. 

54. Proceedings against Mr Torney for contempt were listed for hearing before Burton J. Before the charges came on for hearing, a national conference of the Family Court of Australia was held in Melbourne at which the Chief Justice, Nicholson CJ, made a speech and gave interviews in which he vigorously defended the Family Court against public attacks on the institution, including by saying:

The most strident critics of the court emanate from groups of men who regard themselves as having been badly treated by the family court system. …there is a more sinister element at work. … Many demonstrate in strident terms outside the Court.

55. Mr Torney contended that one would have little difficulty in identifying him as being amongst the “strident critics” referred to or as being a representative of the “sinister element” said to be “at work”: at [10]. Mr Torney said this created the appearance of institutional bias in the Family Court of Australia and he sought an order that Burton J be prevented from hearing the contempt allegation. Gleeson CJ and Gummow J noted at [29]:

The flaw in the argument is that it assumes a relationship between a Chief Justice and a member of his or her court which is contrary to fundamental principles of judicial independence.  It is frequently overlooked that the independence of the judiciary includes independence of judges from one another.  The Chief Justice of a court has no capacity to direct, or even influence, judges of the court in the discharge of their adjudicative powers and responsibilities.  

56. Similarly, Callinan J noted at [142]:

…on any view it cannot be said that the remarks made by the Chief Justice in the circumstances in which he made them could possibly give rise to any apprehension of bias on the part of the different judge who is to try the charges.  Dissents from, and disagreements with judgments of chief justices of all courts are not uncommon.  Judges are bound to, and reasonable observers would appreciate that they will, try cases on the evidence before them and apply the law as they take it to be.

57. Likewise in Heedes v Legal Practice Board [2005] WASCA 166, the Legal Practice Board filed a motion alleging contempt of court against Mr Heedes for purporting to act as a legal practitioner without being admitted to practice. The motion for contempt was listed for directions before a Master, who made intemperate remarks about Mr Heedes. The motion for contempt was listed before McKechnie J. Mr Heedes admitted he was not a certificated legal practitioner and his Honour found that contempt had been proved. Mr Heedes appealed, citing the intemperate remarks of the Master as giving rise to a reasonable apprehension of bias with the consequence that Mr Heedes was denied procedural fairness. The appeal was dismissed. As Roberts-Smith JA noted at [50]:

Here the appellant points to nothing said or done by the trial Judge, but relies wholly on inferences (which I consider to be unreasonable in any event) from comments made by the master which do not purport to convey or reflect any view taken or likely to be taken by the trial judge.

58. Of course, in both cases, a court officer had made a comment which was said to give rise to an apprehension of bias. Here, the defendant does not point to anything said by a judicial officer but, rather, to what he has said about judicial officers as somehow preventing other judges of this Court fairly deciding other proceedings in which he is a party.

59. I note that a similar application was made by Oliver and Dragan Markisic to Schmidt J in Attorney General v Markisic [2011] NSWSC 1436. Her Honour was asked to disqualify herself on the basis that a fair minded observer would form the view that she was biased and, at [20]:

… that not only I, but any Supreme Court Judge would not be able to distance himself from this case and would not be able to bring an impartial mind to the proceedings.

60. The Markisics suggested that it was necessary for the court to make arrangements to have a judge from another country appointed to preside in the proceedings. Her Honour did not accept this submission. At [25]:

That a fair-minded observer could come to the view, in the circumstances that had arisen, that neither I nor any other member of this Court could bring an independent or impartial mind to the determination of the issues arising in these proceedings, cannot be accepted. Broad unsupported assertions as to errors in previous proceedings and judgments, is not a basis upon which such a claim could be established. Nor is the fact that the defendants have wide ranging complaints about the conduct of the Crown Solicitor, Mr Ian Knight, and against various other people, a basis upon which such a claim could be accepted.

61. The defendant made a similar application in Prothonotary of the Supreme Court of New South Wales v Dowling [2017] NSWSC 392 that an interstate judge be appointed for the hearing of the Common Law Proceedings because the allegations made against him concerned allegations which he had made against Judges and a Registrar of this court. Her Honour Justice Adamson dismissed his application. At [9]:

I consider the distinction drawn by Ms Mitchelmore, on behalf of the plaintiff, to be apt, in my view, because these contempt proceedings concern the conduct of Mr Dowling in making the allegations, as opposed to the conduct of the judicial officer themselves, it is not necessary to appoint an interstate judge. Moreover, the power of a particular court to deal with proceedings for contempt is pre-eminently one which in my view ought be dealt with by the court itself as constituted by judges whose commissions are to the particular court.

62. Her Honour was obviously correct. The proceedings before me are even further removed from the circumstances considered by Adamson J. These proceedings concern an application by the plaintiffs for relief by reason of the defendant’s disclosure of the confidential information in the Deed of Release between the plaintiffs and their former employee. Whatever the defendant has said about judicial officers is irrelevant to the subject matter of these proceedings.

63. Overall, it seems to me that even if the subject of these proceedings gives rise to an issue of the character referred to in section 40 of the Judiciary Act, the prospects of success of the Application for Removal being acceded to by the High Court are low as the only argument I can infer from that document is contrary to authority.

64. Further, the balance of convenience favours the plaintiffs. These proceedings were commenced in April 2017. The question of the access to the Hard Drive has been in issue since July 2017. The Transfer Motion has been on foot since January 2018. There is a protracted history of delay which I have earlier set out. The defendant did not file the Application for Removal until after the hearing of the Transfer Motion on 13 September 2018 was adjourned. No explanation for the delay in filing the Application for Removal was given. In these circumstances, I refuse the defendant’s application for a stay.

What to do with the Transfer Motion

65. Section 61(3) of the Civil Procedure Act gives the Court power to make orders where the Court’s directions have not been complied with, including by dismissing or striking out part or all of a claim and making such order as it considers appropriate.

66. The court may also order that proceedings be dismissed if a party does not prosecute the proceedings with due dispatch: rule 12.7, UCRP. While the rule is directed to proceedings as a whole, Schmidt J made an order under this rule in similar circumstances to those before me in Monteiro v State of New South Wales (No 4) [2016] NSWSC 1626. Her Honour explained, at [23]–[24]:

Mr Monteiro has had a fair opportunity to pursue that motion, if he wished. He has not pursued it, as he ought to have done, even given that he is in custody and has suffered ill health. In those circumstances it should be struck out for want of due despatch, as Rule 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW) contemplates.

What must be borne in mind by both litigants and the Court is the requirements of s 56 of the Civil Procedure Act2005 (NSW), which imposes obligations on the parties to assist the Court to facilitate the overriding purpose there specified, namely, “the just, quick and cheap resolution of the real issues in the proceedings”, particularly by participating in the processes of the Court and complying with its directions and orders.

67. The defendant has refused to move on the Transfer Motion, twice. It is his motion. The Transfer Motion was filed six months after the Subpoena was first returnable before the Registrar, and only then after orders were made on four orders to file such a motion. This was referable to the defendant being unable to appear due to his imprisonment, and I do not criticise him for this. After release from gaol, another eight months passed between the filing of the Transfer Motion and the hearings before me, during which time the hearing of the Transfer Motion was adjourned four times. Whilst the defendant went back to gaol in August 2018, he was able to appear before me by video link on both occasions in September 2018.

68. The procedural history of the Transfer Motion, and indeed the proceedings generally, indicate that the defendant has engaged in significant ‘ducking and weaving’ in respect of the Transfer Motion in general and the Hard Drive in particular. The defendant has from time to time offered to inspect the Hard Drive to determine whether, in fact, he has any objection to general access but, ultimately and on each occasion, refrained from doing so. The defendant has, by his actions and inaction, endeavoured, it appears to me, to bring these proceedings generally and the Contempt Motion in particular, to a halt. This is not how the procedures of the Court work.

69. At the adjourned hearing of the Transfer Motion on 27 September 2018, the defendant had adequate notice that his motion was to be heard on that occasion. The defendant had adequate time to prepare the motion for hearing. The defendant had the materials on which he relied in support of the motion with him, and had those materials since at least 11 September 2018, being the date when the Court Book was provided to him in gaol. He was familiar with those materials in any event, having prepared the motion and affidavits himself several months earlier. Having regard to these circumstances, section 61(3) of the Civil Procedure Act and to the “overriding purpose” in section 56 of the Act, I dismiss the Transfer Motion.

Access to the Hard Drive

70. I am not prepared to make an order for general access to the Hard Drive as there may be material on the Hard Drive in respect of which the defendant may be entitled to claim client legal privilege under sections 118 or 119 of the Evidence Act 1995 (NSW).

71. In addition, by the Contempt Motion, the plaintiffs seek declarations that the defendant was in contempt of Court for breaching the non-disclosure order made by Ward CJ in Eq on 19 April 2017 and has committed offences under section 16 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), which provides:

(1)   A person commits an offence if the person engages in conduct that constitutes a contravention of a suppression order or non-publication order and is reckless as to whether the conduct constitutes a contravention of a suppression order or non-publication order.

Maximum penalty: 1,000 penalty units or imprisonment for 12 months, or both, for an individual or 5,000 penalty units for a body corporate.

(2)     Conduct that constitutes an offence under this section may be punished as a contempt of court even though it could be punished as an offence.

(3)     Conduct that constitutes an offence under this section may be punished as an offence even though it could be punished as a contempt of court.

(4)     If conduct constitutes both an offence under this section and a contempt of court, the offender is not liable to be punished twice.

72. In light of this, a privilege against self-incrimination must be considered, although the defendant did not seek to invoke the privilege. A witness may object to giving evidence on the ground that the evidence may tend to provide that the witness has committed an offence or is liable to a civil penalty. Section 128(1) of the Evidence Act 1995 (NSW) provides (emphasis added):

This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness:

(a)    has committed an offence against or arising under an Australian law or a law of a foreign country, or

(b)    is liable to a civil penalty.

Obviously enough, the section requires that the person claiming the privilege is the same person from whom the evidence is sought, hence, a privilege against self-incrimination.

73. Section 128 applies equally to giving oral testimony and the production of documentary evidence. This reflects the common law position as explained in Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 by Mason CJ and Toohey J at 502:

…the production of documents pursuant to process of law, such as a subpoena duces tecum, involves some testimonial aspects. Thus, by producing the documents described, the person producing them admits that the documents existed, were in his or her possession or power and that they are authentic in the sense that they match the description which they have been given.

74. However, a person who may be incriminated cannot make a claim so as to prevent another person revealing the incriminating information: Cross on Evidence (looseleaf, LexisNexis Australia) at [25075]. As Gibbs CJ and Mason and Dawson JJ explained in Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 393 (citations omitted):

… whilst the privilege … would protect a person against a requirement that he produce or identify incriminating documents or reveal their whereabouts or explain their contents in an incriminating fashion, it has no application to the seizure of documents or their use for the purpose of incrimination provided they can be proved by independent means. The privilege is not a privilege against incrimination; it is a privilege against self-incrimination. In relation to documents, the privilege against self-incrimination may be contrasted with legal professional privilege which … affords protection against the seizure documents which fall within the ambit of the privilege.

75. Or as Deane J explained in Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 140:

While the privilege against self-incrimination extends to the production of documents by the person who would be imperilled (see Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs … at 393 …, it is difficult to see how it could, as a matter of principle, apply to the production of documents by that person’s lawyer, bailee or agent since the “privilege is not a privilege against incrimination; it is a privilege against self-incrimination” Controlled Consultants (1985) 158 CLR 385 at 393. See, eg, Rochfort v Trade Practices Commission (1982) 153 CLR 134 at 145; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 504, 516, 535, 548-549; Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 637-638.

76. So, for example, in Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372, Microsoft served a notice to produce on a respondent, Natcorp, seeking production of documents which had been seized from Natcorp by the Australian Federal Police. Another respondent, Grassia, resisted production by Natcorp by reason of the privilege against self-incrimination. Lindgren J disagreed at [32]:

Nor can Grassia complain about the giving of discovery or responding to the notice to produce by Natcorp on the ground that he might tend to be incriminated as a result, because this is not self-incrimination: cf Caltex at 490-493 per Mason CJ and Toohey J, 548-549 per McHugh J; Garvin v Domus Publishing Ltd [1989] Ch 335 at 348 (Walton J).

77. Similarly, in Pascoe v Divisional Security Group Pty Ltd [2007] NSWSC 211, a liquidator brought proceedings against a company and its director for insolvent trading. The director sought orders that the company not be required to give discovery or produce any documents as this could expose the director to a civil penalty. His Honour Justice White rejected this as inconsistent with the privilege against self-incrimination. At [43]:

This argument merely restates that making the [company] liable to compulsory process could expose the [director] to a civil penalty. The [director] is not entitled to privilege against such exposure in that way. If, for example, there are documents in the possession of third parties, including the [company], which would have that tendency, the plaintiffs are entitled, by a proper subpoena or order for discovery, to obtain production of the document. In doing so, the privilege which the [director] enjoys against exposure to a civil penalty is not infringed, because he is not being required to expose himself to a penalty. Rather, the plaintiffs would simply be endeavouring to prove the case against him using compulsory processes of the Court against third parties.

78. Whilst section 128 concerns giving evidence at final hearing, section 87 of the Civil Procedure Act deals with the privilege against self-incrimination in interlocutory matters. Section 87(2) provides (emphasis added):

This section applies in circumstances in which:

(a)    an application is made for, or the court makes, an order for production against a person, and

(b)    the person objects to the making of such an order, or applies for the revocation of such an order, on the ground that the evidence required by the order may tend to prove that the person has engaged in culpable conduct.

Consistently with the authorities already canvassed, section 87 requires an identity between the person from whom the documents are sought and the person claiming the privilege against self-incrimination.

79. In this case, the Hard Drive was produced in answer to the Subpoena on the Commissioner of Police and the defendant is not called upon to produce it or say anything about its provenance or contents. Consequently, the defendant does not have a privilege against self-incrimination in respect of the production of the Hard Drive by the Commissioner of Police.

80. How then can the Court proceed in the circumstances? Even if the defendant were minded to inspect the Hard Drive, a regime would need to be in place to ensure the safe custody of the Hard Drive and its contents. It is not readily apparent to me how this can be achieved in circumstances where the defendant is in gaol and, as I understand it from what he told me, will be for some time. Whilst the defendant could give instructions to a legal practitioner in respect of what records on the Hard Drive may be privileged, he does not have legal representation.

81. Rule 31.54(1) of the UCPR provides:

In any proceedings, the court may obtain the assistance of any persons specially qualified to advise on any matter arising in the proceedings and may act on the advisor’s opinion.

82. Two examples indicate where application of this rule may be appropriate. In Wyong Shire Council v Neuman [2008] NSWSC 1295, Macready AsJ appointed a person to assist him to effectively test the evidence of four competing expert witnesses on a technical matter. The case concerned whether a product known as Envir-o-Agg complied with detailed specifications in a contract to rehabilitate land fill and construct sports fields. The person so appointed sat with Macready AsJ on the bench during the hearing and cross-examined the experts after others had cross-examined them, and assisted Macready AsJ to collate the evidence but not to express any opinion on the subject matter of the hearing: at [16].

83. In Ingot Capital Investments v Macquarie Equity Capital Markets (No 7) [2008] NSWSC 199, McDougall J considered numerous question of costs arising from his Honour’s determination of the substantive proceedings between the parties. Some of the parties sought orders that costs be paid in a gross sum. His Honour observed at [245]:

I have to say that I feel less than fully qualified to decide questions of quantification of costs, as opposed to questions of principle that may arise before or in the course of quantification. One course might be to refer the question of quantification (should it arise) to a referee. That course will certainly lead to prolongation and further expense. Another course might be to appoint an expert to inquire into and report on any issues that are unresolved between the plaintiffs and any defendant on the question of gross sum costs. That again would lead to prolongation and further expense, but would give the Court independent assistance on what are likely to be very difficult questions. A third course might be to make an order under UCPR Rule 31.54 for the Court to obtain the assistance of an appropriate specially qualified person to advise on the questions in dispute. If that were done, I would envisage the appointment of a qualified costs consultant or costs assessor, who would consider all of the material relied upon by the parties, provide assistance to me in relation to the matters in dispute (which assistance of course would be disclosed to enable the parties to address it), and who would sit with me in effect as an assessor.

His Honour invited the parties to consider which of these courses were most suitable.

84. It seems to me that an order under rule 31.54(1) is appropriate in this case to identify documents in respect of which the defendant may be entitled to claim client legal privilege. From time to time, Sylvia Fernandez, a solicitor and partner of Thomson Geer, has been appointed by the Court to undertake the role of the independent solicitor in the execution of search warrants issued by the Court. In this capacity, Ms Fernandez has served orders, supervised searches and taken custody of items seized under the orders. Ms Fernandez has reviewed information stored on technology devices to determine material that may fall into particular categories or that may belong to a third party. Ms Fernandez informs me that she has no conflict, that is, neither she nor her firm have previously acted in matters concerning the plaintiffs or the defendant. I propose to appoint Ms Fernandez to inspect the Hard Drive and identify any documents over which the defendant may be entitled to claim client legal privilege.

85. The contents of the Hard Drive may not be used by the plaintiffs otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court: Hearne v Street (2008) 235 CLR 125; Harman v Secretary of State for the Home Department [1983] 1 AC 280; Blanch v Deputy Commissioner of Taxation [2004] NSWCA 461 at [5], per Giles JA (with whom Hodgson and Ipp JJA agreed).

86. The question of costs was not canvassed with the parties. In the event that either party seeks a costs order in their favour, they may file and serve written submissions in support of the order they seek within 7 days, failing which costs are reserved.

ORDERS

87. I make the following orders:

1. Dismiss the defendant’s application for a stay of the proceedings.

2. Pursuant to Section 61(3) of the Civil Procedure Act 2005 (NSW), dismiss the defendant’s motion filed on 12 January 2018.

3. Pursuant to Rule 31.54 of the Uniform Civil Procedure Rules 2005 (NSW), appoint Sylvia Fernandez, solicitor, of Thomson Geer to provide assistance in these proceedings as follows:

1. uplift packet S-5 (the Hard Drive) from the Exhibits Office;

2. inspect the contents of the Hard Drive and identify any records to which the defendant may be entitled to claim client legal privilege under section 118 or 119 of the Evidence Act 1995 (NSW);

3. copy the records identified in (b) onto an electronic storage device to be clearly labelled “Privileged Data: No access is to be granted without leave of the Court”;

4. copy any remaining records on the Hard Drive to a second electronic storage device to be clearly labelled “Available Data: general access pursuant to orders made on 7 December 2018”;

5. return the Hard Drive to the Exhibits Office; and

6. provide to the Court by 28 February 2019:

1. the two electronic storage devices described in (c) and (d); and

2. a report as to how the task described in this Order was completed.

4. Grant the plaintiffs access to the electronic storage device labelled “Available Data: general access pursuant to orders made on 7 December 2018” on and from 1 March 2019.

5. Order the plaintiffs in the first instance to pay Ms Fernandez’ costs of attending to the task referred to in Order (3).

6. Costs are reserved.

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Amendments

10 December 2018 - Amend hearing date

Decision last updated: 10 December 2018