SG v New South Wales Crime Commission (No 4)

[2021] NSWSC 92

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

SG v New South Wales Crime Commission (No 4) [2021] NSWSC 92

Hearing dates:

7, 14 December 2020

Date of orders:

04 February 2021

Decision date:

04 February 2021

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   The plaintiff’s motion seeking to set aside subpoenas issued by the New South Wales Crime Commission to the plaintiff, JG and the plaintiff’s solicitor is dismissed, except as to paragraph 10 of the aforesaid subpoenas;

(2)   The plaintiff’s application for discovery in the categories attached to the plaintiff’s motion filed 26 August 2020 is granted, save as to paragraphs 14 and 15 thereof;

(3)   Access to documents produced on subpoena by the Australian Federal Police is denied, subject to the production of redacted material by the defendant herein and subject to further order of the Court;

(4)   The application by the Attorney seeking to set aside a subpoena addressed to him is dismissed;

(5)   The costs of all motions be costs in the cause.

Catchwords:

CIVIL PROCEDURE – Discovery – subpoenas – motions to set aside – collateral purpose – applications to set aside – provisions of s 80 of Crime Commission Act preventing compelling production in certain circumstances – details of each schedule – motions generally dismissed.

Legislation Cited:

Civil Procedure Act2005 (NSW)

Crime Commission Act2012 (NSW)

Limitation Act1969 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

A v Independent Commission Against Corruption (2014) 88 NSWLR 240; [2014] NSWCA 414

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

National Employers’ Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372

SG v New South Wales Crime Commission [2016] NSWSC 1615

SG v New South Wales Crime Commission (No 2) [2018] NSWSC 600

Taylor v Director of the Serious Fraud Office [1999] 2 AC 177

Ulman v Live Group Pty Ltd (2018) 367 ALR 95; [2018] NSWCA 338

Wran v Australian Broadcasting Commission[1984] 3 NSWLR 241

X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29

Category:

Procedural rulings

Parties:

SG (Plaintiff)
New South Wales Crime Commission (Defendant)
Attorney General of the Commonwealth (Applicant)

Representation:

Counsel:
C O’Neill (Plaintiff)
M Windsor SC (Defendant)
T Glover (Applicant)

Solicitors:
Laxon Lex Lawyers (Plaintiff)
Crown Solicitor’s Office (Defendant)
The Australian Government Solicitor (Applicant)

File Number(s):

2015/194130

Publication restriction:

Publication restriction as to evidence or any material that would identify any individual mentioned in the proceedings, other than legal practitioners.

Judgment

1. HIS HONOUR: Before the Court are three motions. The first motion, notice of which was filed by the plaintiff, SG, on 26 August 2020, seeks to set aside subpoenas issued on behalf of the defendant, the New South Wales Crime Commission (hereinafter “the Commission”) and seeks production from the plaintiff, JG, and the plaintiff’s solicitor, Mr John Laxon. The motion also seeks discovery against the Commission and that the defendant pay the plaintiff’s costs of the motion.

2. The second motion, notice of which was filed by the Commission on 26 August 2020, seeks orders restricting access to material produced by the Australian Federal Police (hereinafter “the AFP”) under subpoena, so that the defendant can provide redacted versions to the plaintiff.

3. A third motion, notice of which was filed by the Attorney General of the Commonwealth (hereinafter “the Attorney”) on 28 August 2020, seeks orders setting aside a subpoena addressed to it or him and for the costs of the Attorney to be paid by the plaintiff.

Background

4. Prior to 2003, the plaintiff had served multiple custodial sentences for multiple different offences. In about 2003, an officer of the Commission, JG, approached the plaintiff to ascertain whether he was willing to assist the Commission as a human source. In about late 2004, SG agreed to assist the Commission by continuing to mix in the criminal underworld and by fostering relationships of trust, so as to garner information that would then be provided to the Commission for consideration. SG was a source for about 10 years until approximately 2014.

5. The plaintiff’s substantive claim in the proceedings is that the Commission has failed to pay, either in whole or in part, the consideration to which it had agreed and/or offered and as a result of which SG provided the information as a source. Further, the plaintiff seeks damages for breach of the contract, the plaintiff says exists, between the Commission and the plaintiff and, in particular, the failure by the Commission to maintain confidentiality as to the identity of the plaintiff, which put the plaintiff in significant peril; breached its contractual and tortious obligations; and resulted in the plaintiff needing to reside in exile.

6. The Commission accepts that it received information from the plaintiff, from time-to-time, and provided the plaintiff with money, from time-to-time. However, the Commission alleges that the payments were not made pursuant to any obligation and that there was no contract or any other obligation on which the plaintiff can or could sue. The Commission denies that it owed or breached any obligation to the plaintiff, in regard to the monies said to be owed, confidentiality or safety.

Plaintiff’s motion

7. The plaintiff relies upon the Affidavit of his solicitor, John Laxon, affirmed 23 October 2020. The plaintiff submits that, on the basis of that Affidavit, he should obtain the orders in the motion.

8. The submissions of the plaintiff seek orders for discovery because the plaintiff did not maintain written records of his service to the Commission. It is said, and I accept, that the failure to maintain written records was “for obvious reasons”, given the nature of his role as a source and the dangerous and/or disadvantageous risk that accompanies or would accompany the finding of such notes. The plaintiff maintains that he negotiated and reached a concluded agreement with the Commission by late 2004. The discovery is sought to corroborate the existence of that concluded agreement and its terms.

9. Further, the plaintiff submits that he provided information to the Commission over the decade commencing 2004 and the documents will corroborate the value of the information by reference to the value of money and/or drugs and/or weapons that were seized as a consequence of the information provided by the plaintiff.

10. The Commission employed a process for calculating rewards to sources and, according to the plaintiff, the plaintiff was remunerated (at least in part) by the Commission over the decade commencing 2004.

11. The plaintiff submits that the categories of documents listed in the request for discovery is required to cover a substantial period of time and seek different types of documents, because the Commission has put the plaintiff to proof on, effectively, the entirety of the claim; whether useful information was provided; the degree to which the information was useful; and whether payment was due and the manner in which it would be calculated.

12. Over and above the discovery issues, the applicant seeks to set aside the subpoenas issued by the Commission on the basis that those subpoenas have no legitimate forensic purpose. The plaintiff submits that the subpoenas seek to have the plaintiff produce material that the plaintiff has in order to determine whether any of that material came from JG for the purpose of furthering a criminal investigation against JG. As a consequence, the plaintiff says the subpoenas represent an abuse of process.

13. The documents sought in the subpoena issued by the Commission fall within unusual descriptions. They are documents that largely ought ordinarily to be in the possession of the Commission. Most, if not all, of the documents are documents of which the plaintiff has, himself, sought to require production from the AFP and the Attorney, as well as from the Commission, through discovery and, the plaintiff says, as a consequence, the obvious purpose of the subpoena is to determine that which the plaintiff already has in his possession.

14. The plaintiff also raises certain further specific complaints, which are enumerated at [18] of the Plaintiff’s Written Submissions. It is not entirely clear why a complaint that the description of documents has been modelled on one or more subpoenas already issued by the plaintiff is one that ought to be upheld. Nevertheless, the categories of detailed complaint are:

1. Paragraphs 1, 2 and 3 of the subpoena are modelled on the plaintiff’s own subpoenas to the AFP and the Attorney. Those documents have either not been produced or objection has been taken to access to them and, the plaintiff submits, the defendant has issued the subpoena to see if the plaintiff already has the documents, which is not a legitimate forensic purpose;

2. Several paragraphs appear to be modelled on the plaintiff’s own discovery category;

3. Paragraph 9 of the subpoena seeks the production of a Confidentiality Deed signed by the plaintiff and, it is said, this is irrelevant and has no “adjectival relevance” to the proceeding;

4. Paragraph 11 seeks the metadata to a document in relation to which the plaintiff had served on the defendant a notice to admit its authenticity. The defendant has denied the authenticity of the document.

15. The foregoing is submitted in the context of two fundamental aspects. First, the plaintiff draws attention to the attempt by the Commission to restrain the plaintiff’s lawyers from acting for him on the basis of suspicions that they [the plaintiff’s lawyers and JG] have engaged in criminal activity. [1]

    1. SG v New South Wales Crime Commission (No 2) [2018] NSWSC 600.

16. Secondly, the plaintiff draws attention to the response provided by the Commission, or, more accurately, the Commissioner, on 3 December 2015, to the plaintiff’s request that the provision of certain documents is necessary and in the public interest, pursuant to the terms of s 80(4)(c) of the Crime Commission Act2012 (NSW) (hereinafter “the Act”). In that response Mr Hastings QC, Commissioner, said:

“There is no inconsistency in the actions of the Commission in serving a Notice to Produce upon the plaintiff’s solicitors. The purpose of the Notice is to obtain evidence of unlawful conduct by [JG] and the solicitor in support of the application by the Commission to have the proceedings dismissed in order to prevent an abuse of the court’s process.”[2]

2. Exhibit A, Motions Courtbook, Tab 10, p 159 of 412, at [10].

17. The plaintiff submits that the necessary inference arising from the request to produce documents already in the possession of the Commission, in circumstances of the prior conduct of the Commission, is that the subpoena is being used as an abuse of process namely to establish that JG and/or the plaintiff have engaged in criminal activity and the Court should not permit subpoenas to be used to pursue such an aim.

18. The Commission opposes orders for discovery and opposes the setting aside of its subpoenas. The Court deals firstly with the submissions in relation to the discovery application.

19. First, the Commission submits that it is inappropriate to order discovery in circumstances where the substantive claim pursued by the plaintiff is barred by operation of the Limitation Act1969 (NSW). Further, it is said that s 80 of the Act would preclude the production by the Commission of any documents.

20. In relation to the first aspect, namely, the limitation point, the Commission submits that it would be inconsistent with the provisions of s 56 of the Civil Procedure Act2005 (NSW) and the primary purpose or objective thereby established, for the Court to order discovery and, in so doing, to require the Commission to incur the expense of compliance with such an order prior to the Court being informed of the plaintiff’s position concerning the limitation issue.

21. Over and above the foregoing objections, the Commission submits that the categories of discovery are excessively broad and, at least in that respect, oppressive. The Commission submits that the plaintiff is seeking documents for the purpose of determining whether there is a case, rather than seeking documents in support of the case already alleged. The Commission further submits that at least some of the documents sought are already in the possession of the plaintiff’s solicitors.

22. In relation to the motion by the plaintiff to set aside the Commission’s subpoenas, the Commission again opposes the making of such orders. Its written submissions refer to a number of authorities dealing with the use of the term “likely” or “on the cards” and the lack of a necessity to show that the documents sought will materially assist the Commission’s case.

23. Over and above the foregoing, and notwithstanding the status of the Commission as an agency of the New South Wales Government and, presumably, caught by the model litigant policies, the Commission also submitted that the plaintiff does not have standing to challenge the subpoena issued to JG. This submission rests upon the line of authority summarised by Hunt J in Wran v Australian Broadcasting Commission,[3] in which case the plaintiff was said not to have standing to set aside a subpoena issued by the defendant against a stranger to the proceedings.

    3. Wran v Australian Broadcasting Commission [1984] 3 NSWLR 241.

24. However, the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter “UCPR”) were expressly amended from the terms that were applicable under the Supreme Court Rules 1970 (NSW), dealing with the setting aside of subpoenas and, now effect a different regime to that summarised by Hunt J.

25. By operation of UCPR r 33.4(1) the Court is empowered to set aside a subpoena, expressly, on the application of a party. It may also do so on the application of any person having a sufficient interest, which, prior to the amendment, necessarily included persons against whom such a subpoena issued.

26. Notwithstanding the comment that has been made in Ritchie’s Uniform Civil Procedure, NSW, [4] that it is necessary for a party to proceedings to show that it has “a sufficient interest”, the view I take is that an application to set aside a subpoena may be made by any person having a sufficient interest in so doing or by a party to the proceedings. The difference has little or no relevance in these proceedings, because, if the construction I prefer be incorrect, the plaintiff has a sufficient interest.

    4. Ritchie’s, Uniform Civil Procedure, NSW, vol 1 (at Service 106) [33.4.45].

27. In the preferred construction, the two classes of applicants to set aside a subpoena are, on the one hand, any party to the proceedings and, on the other hand, any other person having a sufficient interest. Such a construction accords with the history of the provision and takes account of the mischief that was sought to be addressed by the alterations in the provisions.

28. The former issue relating to the standing of a party to object to the issue of the subpoena by another party to a stranger, to which the Court earlier referred, had been the subject of significant authority. The Court of Appeal in Waind and Hill [5] outlined the three-step procedure associated with the use of documents and their production.

    5. National Employers’ Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372.

29. The first step, at the time of the judgment in Waind and Hill, involved objections only by the witness who had been the subject of the subpoena, either to attendance or to the production of documents pursuant to the subpoena. A subpoena could be set aside for grounds such as the lack of authority or proper issuance; the use of a subpoena for the purpose of discovery (otherwise called fishing) and other such well-rehearsed grounds. This step could only be set aside by the person to whom the subpoena was addressed.

30. The second step, assuming the subpoena was validly issued and has not already been set aside, is that the documents are brought to court. Once the documents are brought to the court, they are within the control of the court and it is for the court to determine whether to permit inspection of part or all of the documents by the party who issued the subpoena, or any other party, assuming, in that respect, that the documents have apparent relevance to the issues being litigated.

31. The third step, described by the Court of Appeal, was the step involved in the tendering of the document, assuming a party sought so to do, and the determination by the court of the document’s admissibility. [6]

    6. Waind and Hill (Moffitt P, Hutley and Glass JJA agreeing at 381), citing The Commissioner for Railways v Small (1938) 38 SR (NSW) 564.

32. The judgment of the Court of Appeal in Waind and Hill prescribes the foregoing three steps and the kind of objections that may be taken on improper purpose. As a matter of completeness, the Court notes that the Commission also seeks costs in relation to the plaintiff’s motion.

Motion by the Commission

33. As earlier stated, the Commission has filed a motion seeking orders restricting access to material produced under subpoena by the AFP. That motion relies upon the Affidavit of Mr Timothy James O’Connor, affirmed 24 September 2020. The Commission submits that the documents sought under subpoena to the AFP should be redacted to remove information that is captured by s 80 of the Act. The documents, according to the submission, fall into two categories: first, documents created by the Commission and sent to the AFP; and, secondly, documents created by the AFP based upon information provided by the Commission.

34. The Commission submits that the production of the documents was in error and in breach of the Memorandum of Understanding between the AFP and the Commission. It is not absolutely clear from the submission of the Commission what is meant by the term “in error”. The Court issued the subpoena; and the subpoena was answered.

35. No submissions have been put on the basis of a Memorandum of Understanding between the AFP and the Commission overriding the powers of the Court. Nevertheless, as I understand the submission, it is one that is based upon the terms of s 80 of the Act.

36. It is said that the terms of s 80 of the Act preclude the Court from compelling the production of the documents that were, in fact, produced. The Memorandum of Understanding between the AFP and the Commission merely reiterates or confirms the confidential nature of the documents and the protection provided by s 80 of the Act.

37. In relation to the Commission’s motion, the plaintiff submits that the documents are relevant, by which the Court assumes the plaintiff means adjectivally relevant. The plaintiff submits, as is its substantive claim, that the plaintiff had a contractual relationship with the Commission under which the Commission provided the plaintiff with rewards for information. The plaintiff was a registered human source. Each of those matters is denied by the Commission.

38. As a consequence of the denial of those issues, those matters sought by the plaintiff from the AFP are matters that are adjectivally relevant to the issues in the proceedings.

39. To complicate matters further, the plaintiff refers to a document, and there are a number of documents in this category, produced by the Attorney in response to a request under legislation providing for freedom of information. That document indicates that the Commission proposed to the Attorney that the AFP consider taking “ownership” of the plaintiff as a source. The plaintiff points to this letter as indicating the adjectival relevance of the documents sought to be produced.

40. On questioning from the Court, the plaintiff also submitted that the production of the document under freedom of information legislation, being Commonwealth legislation, affects the operation of s 80 of the Act, assuming, for present purposes, that s 80 of the Act applies.

33. Moreover, the plaintiff submits that there is no admissible evidence before the Court that s 80 of the Act has been contravened in respect of any one of the documents produced by the AFP and there is no evidence that the provisions of s 80 of the Act restricts the Court’s power or jurisdiction to order production and to permit inspection.

34. Over and above the foregoing, and in the alternative to the foregoing, the plaintiff submits that, assuming s 80(1)(f) of the Act applies to the documents, there are two reasons why the terms of s 80 do not prevent the plaintiff from gaining access to the documents. First, s 80(3) does not apply to the documents produced by the AFP, because those documents did not come into the control of the AFP in the exercise of any function by the AFP under the Act.

35. Secondly, the documents have now been produced. The AFP, it is submitted by the plaintiff, produced the documents voluntarily, evidence of which is confirmed by the terms of a letter from the Commission’s solicitor. The Act, on the submission, restricts a court from compelling disclosure, but does not impact voluntary disclosure. [7]

    7. A v Independent Commission Against Corruption (2014) 88 NSWLR 240; [2014] NSWCA 414, at [43] (Basten JA).

36. Over and above the foregoing, the plaintiff submits that concerns relating to confidentiality do not withstand scrutiny. The proceedings, and the documents already produced in the proceedings, are already the subject of suppression orders sought by the Commission and by the plaintiff and to which each of the parties have agreed.

37. Further, there is no limitation on the Court’s power to require confidentiality in relation to any document produced and the plaintiff has stated a willingness to enter into an appropriate confidentiality regime and/or abide by one imposed by the Court.

38. Further, if the Court were otherwise minded to grant the orders sought by the Commission, the plaintiff submits that the Court should undertake a supervisory function and review the proposed redactions. It seems that the plaintiff misunderstands the submission on confidentiality, which relates not to whether the documents remain confidential, but to the operation of s 80 of the Act.

Motion by the Attorney

47. As earlier stated, the Attorney has filed a motion, notice of which was given on 28 August 2020, seeking orders setting aside the subpoena. The Attorney also seeks costs of his or its motion. The Attorney relies upon the Affidavit of Ms Alexandra Downie, sworn 25 September 2020.

48. As is clear, the subpoena served upon the Attorney seeks documents prepared by the Commission and provided to the Attorney for the purpose of the Attorney reviewing the plaintiff’s parole supervision. The Attorney has made clear that it has filed the motion seeking to set aside the subpoena because of a concern that the documents sought may be the subject of restrictions under s 80 of the Act. The Attorney has proposed that:

1. the Commission obtain a direction from the Commissioner or Management Committee of the Commission pursuant to s 80(4)(c) of the Act that production of the documents to the Court is in the public interest;

2. in accordance with direction, the Attorney is to produce the documents to the Court;

3. the Court should order access to the documents limited to the Commission initially, until further order, thereby enabling the Commission to assess whether to assert public interest immunity or any issue associated with the provisions of s 80 of the Act;

4. if the Commission asserts immunity and the plaintiff puts the Commission to proof, then that issue should be determined without involvement of the Attorney.

49. If, notwithstanding the foregoing approach, the Commission does not provide a direction pursuant to the terms of s 80(4)(c) of the Act, the Attorney submits that it is not required to produce the documents, because of the operation of s 80 of the Act.

50. Notwithstanding the foregoing, the plaintiff has made it clear that it would and does consent to the regime proposed by the Attorney, which would allow immediate access (or within a short period) by the plaintiff to the documents that have been redacted. At the hearing of the proceedings, the Court made it clear that such a course is appropriate and the Commission undertook to provide redacted documents to the plaintiff by 24 December 2020.

51. The Court has not been apprised of any difficulty associated with that production of redacted documents. The plaintiff, in relation to the motion by the Attorney, seeks its costs from the Attorney and, on the substance of the objection, submits, consistently with its other submissions, that s 80 of the Act does not apply to the documents, inter alia, because the Attorney is not performing functions under the Act, which, it is said, is a requirement of s 80(3) of the Act.

Consideration

52. As earlier stated, when the motions were before the Court for hearing, on 18 December 2020, the Court gave directions, the effect of which was to implement part of the process suggested by the Attorney. While not suggesting consent, there was a degree of consensus to that approach, at least as an initial step.

53. That direction required the Commission to copy those documents produced by the AFP in answer to the subpoena addressed to him and to produce a redacted version of those documents for inspection by the plaintiff. That production was to have occurred on or before 24 December 2020. The Court has not been informed that there has been any issue associated with compliance with that direction.

54. It is necessary for the Court to deal with the remaining aspects of the motions before it. One of the issues raised by the grounds addressed by the parties relates to that which is commonly, but incorrectly, called the “implied undertaking” relating to the use of documents produced, on compulsion, in proceedings.

55. The “implied undertaking” refers to the prohibition, absent leave of the Court, on the disclosure or use of documents produced to the Court as a result of the exercise of compulsive powers otherwise than for the purposes of the conduct of the proceedings. The prohibition is now contained within the provisions of UCPR r 21.7, which is in the following terms:

“21.7    DISCOVERED DOCUMENTS NOT TO BE DISCLOSED

1. No copy of a document, or information from a document, obtained by party A as a result of discovery by party B is to be disclosed or used 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.

2. Nothing in subrule (1) affects the power of the court to make an order restricting the disclosure or use of any document, whether or not received into evidence, or the operation of any such order.”

   56. It has long been the law that information provided by the use of the Court’s compulsory processes could only be used and disclosed for the purpose of the proceedings in which that production was compelled. At one point, there was a requirement to obtain an undertaking before access was granted to any such information.

   57. Given the terms of UCPR r 21.7, that undertaking would be unnecessary. However, for many years prior to the promulgation of the current rule it had been established that the law prohibited disclosure, except by leave of the Court.

   58. The term “implied undertaking” was used by the House of Lords. [8] In Hearne v Street,[9] the High Court clarified that the prohibition on the use of material, obtained by the coercive powers of the court in proceedings other than those in which those coercive powers have being exercised, was an aspect of substantive law and the obligation bound not only the parties to proceedings but also a third party who knew the origins of the material.

       8. Taylor v Director of the Serious Fraud Office [1999] 2 AC 177.

       9. Hearne v Street (2008) 235 CLR 125; [2008] HCA 36.

   59. The High Court [10] clarified that the “undertaking” was described in that way for both historical reasons and to indicate the way in which the obligation, imposed by law, binds the recipient of the documents and highlights the substantive nature of the obligation. [11] A breach of the obligation is a contempt of the court. [12]

       10. Hearne v Street (Gleeson CJ at [3]; Kirby J at [57]; Hayne, Heydon and Crennan JJ at [105]-[108], particularly at [107]).

       11. Hearne v Street, supra, at [106].

       12. Hearne v Street, supra.

   60. In these proceedings, the plaintiff alleges an abuse of process, because the Commission, or its officers, has made it clear that information is being sought, in the proceedings, for the purpose of laying a foundation for criminal proceedings for breach of s 80 of the Act. If that were so, such a prosecution would require the Commission, or its legal representative, to disclose to prosecuting authorities information received on discovery and/or as a result of production on subpoena for use in other proceedings and, without leave of the Court, would be a contempt of the Court.

   61. The underlying principle has been discussed, overwhelmingly, as it relates to documents and information provided as a result of discovery. But the same principles apply to any coercive action which requires a party to reveal information and documents that, otherwise, could be kept private. Thus, the principle applies equally to documents produced on subpoena.

   62. The principle, at least insofar as it relates to separate criminal proceedings, has similarities to the manner in which the courts have dealt with the compulsory examination of persons suspected of committing criminal offences. [13] There are of course significant differences.

       13. X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29.

   63. In X7, supra, the High Court was concerned with the privilege against self-incrimination and the right to silence. Discovery directed at the plaintiff for the purpose of inculpating JG does not give rise to a privilege against self-incrimination in the plaintiff.

   64. It may well be that, in answer to a subpoena addressed to JG, JG may raise issues associated with the privilege, but that is not an issue raised as a result of an order for discovery compelling the plaintiff to produce documents, some of which may have originated with JG. At this stage, the Court has no application by JG in relation to any subpoena issued compelling him or her to produce documents.

   65. The foregoing discussion informs the attitude of the Court to the objection by the plaintiff to the orders for discovery requested by the Commission, the details of which will be dealt with in the following reasons for judgment.

   66. While the plaintiff does not have open to him a claim for privilege based upon the privilege against self-incrimination associated with alleged criminal conduct by JG, there may be some claim for legal professional privilege and/or the privilege against self-incrimination associated with the conduct of the plaintiff in facilitating, and/or aiding or abetting or procuring, the conduct by JG. No such claim has been, thus far, agitated.

   67. Further, the comment by the Commissioner, to which earlier reference has been made, [14] to the extent that it discloses a purpose or effect that amounts to a detriment to be imposed upon JG or the plaintiff’s solicitor on account of the proceedings having been taken in this Court, may, in and of itself, amount to contempt of the Court. [15] The statement by the Commissioner may arguably have or have had a real tendency to interfere in the administration of justice, in that criminal sanctions would be imposed if the plaintiff persisted in asserting the rights alleged in the proceedings before the Court. [16] However, the comment of the Commissioner seemed not to be directed to separate proceedings, whether or not criminal, but to a motion in these proceedings to dismiss summarily on the basis of public policy or illegality.

       14. See [16] infra.

       15. Ulman v Live Group Pty Ltd (2018) 367 ALR 95; [2018] NSWCA 338.

       16. See Ulman, supra, at [154]-[159], [170]-[179].

   68. If the purpose of a notice to produce, subpoena or discovery is to obtain evidence of unlawful conduct by JG, for use in other proceedings, such a purpose would be extraneous to the purposes for which the compulsive powers of the Court may be used in these proceedings and would be an abuse of the proceedings. Nevertheless, if there be a legitimate purpose in obtaining documents that are sought, which documents may also provide evidence of unlawful conduct, then the requirement to produce the documents is not an abuse of process. The Court would, ordinarily, by one or other order, prevent the collateral use of the documents produced.

   69. The next issue with which it is necessary to deal, as a matter of principle, and as a prelude to dealing with the details of each of the motions, is the effect, if any, of s 80 of the Act. It is necessary to give some background.

   70. As stated by the Court earlier,[17] the substantive proceedings allege a contract of employment or contract for services under which the Commission is obliged to pay the plaintiff amounts the plaintiff says are owing pursuant to an obligation to pay for information provided by the plaintiff as a source. The Commission, previously, relied upon the provisions of s 80 of the Act[18] to dismiss the proceedings, in totality, as an abuse of process.

       17. SG v New South Wales Crime Commission [2016] NSWSC 1615.

       18. See SG v New South Wales Crime Commission [2016] NSWSC 1615 at [32].

   71. In these proceedings, the Commission relies upon s 80 of the Act in two ways. First, the Commission submits that the information already obtained by the plaintiff has been obtained “illegally”, in that it has been obtained inconsistently with the terms of s 80 of the Act. As a consequence, it is said the plaintiff is not entitled to rely upon that material in the proceedings.

   72. Secondly, the Commission relies upon the terms of s 80 of the Act to prevent the Court from requiring the Commission or the AFP from producing to the Court documents or information, or divulging or communicating to the Court that which has come into the possession of the Commission, its officers, or the AFP as a result of the performance of functions under the Act.

   73. First, the Court makes clear that there is no evidence before the Court on which the Court could draw an inference or come to a conclusion that the material obtained, thus far, by the plaintiff, being information or documents provided to the plaintiff by the Commission, was obtained inconsistently with the provisions of s 80 of the Act. The plaintiff is not an executive officer or member of the staff of the Commission.

   74. Nor does the plaintiff fit within any of the classes of persons defined in s 80(1) of the Act. Nor is there evidence before the Court that the plaintiff was a person who was provided information by the Commission on the express requirement that the material was to be treated as confidential. [19]

       19. See s 80(1)(f) of the Act.

   75. In relation to the AFP, the functions of the AFP are defined by Commonwealth legislation. The functions of the AFP and/or the Attorney are not functions performed under the Act. As a consequence, the AFP, even if it be a person to whom the provisions of s 80(1) apply, is not performing functions under the Act and, leaving aside the extended operation of s 80(5) of the Act, is not a person caught by the prohibition on a court to produce documents or divulge information, [20] as stated in SG v New South Wales Crime Commission [2016] NSWSC 1615[21] (hereinafter “the first judgment”).

       20. See s 80(3) of the Act.

       21. At [36] and following.

   76. As noted already and determined by the Court, as presently constituted, in the first judgment, properly understood and construed, the terms of s 80 and the limitations on a court’s capacity to require production or the divulging of information relate to the special functions of the Commission, not to its corporate functions. As a consequence, unless such information expressly or inferentially relates to the special functions and investigative powers of the Commission, correspondence setting out the terms of engagement of the plaintiff, if there be any, or the work to be performed, would not be subject to limitation.

   77. Having made that comment, it is clear that, when one is dealing with the engagement of a source, there may be significant matters that relate to the special functions of the Commission that would be disclosed as a consequence of the divulging of work performed or to be performed, including, possibly, the modus operandi of the Commission. However, no evidence before the Court discloses any such information or any real possibility of the disclosure of any such information. As was sought to be made clear in the first judgment, such a conclusion may be reached by reference to a particular class of documentation, on the face of that description, or, otherwise, may require the Court to inspect the documentation for the purpose of determining whether s 80 of the Act applies.

   78. That involves a quandary. It is not, however, without a solution. In the absence of evidence which, on its face, discloses material of the kind to which s 80 of the Act applies, there is no limitation on the Court in requiring production to the Court.

   79. Once production has occurred, then the Court may, for the first time, have evidence that there is material in the documentation, the disclosure of which and/or the compulsory production of which would be inconsistent with the terms of s 80 of the Act. Since the Act defines the term “produce” to include permitting access to or inspecting, the Court would, having received the evidence, be in a position to be able to determine that access or inspection not be permitted as a consequence of the terms of s 80 of the Act. The Court, presently, is not at that point.

   80. I turn then to the details of each of the motions. As already indicated, the plaintiff seeks to set aside subpoenas issued to the plaintiff, JG and the plaintiff’s solicitor. The basis for that motion has already been summarised.

   81. Ultimately, the purpose of discovery and/or a subpoena (leaving aside the necessary distinctions between the two methods of compulsory production) is to allow a party to the proceedings to be aware of all that is in the possession of the other party that is adjectivally relevant to the issues in the proceedings. The fact, if it be the fact that the Commission seeks production from the plaintiff of documents that the Commission already has on its records, does not seem, on its face, to be a basis for disallowing the requirement to produce.

   82. I have already dealt with the collateral purpose submission to which the plaintiff has referred. Notwithstanding that there may be a collateral or illegitimate forensic purpose in seeking the documents, there is also, on its face, a legitimate forensic purpose in the Commission obtaining all documents and information adjectivally relevant to the proceedings in the possession of the plaintiff and, in relation to subpoena, in the possession of JG.

   83. Those foregoing comments are, necessarily, subject to any issue that may be raised by either JG or the plaintiff’s solicitor as to any privilege in relation to any particular document, some of which issues have already been the subject of comment. The mere fact that the application for discovery by the Commission is one that seeks to determine that which the plaintiff already has in his possession is not a reason for disentitling the Commission from discovery it may otherwise be entitled to obtain. Nor, as stated, is it impermissible for the Commission to seek discovery on the basis of descriptions of documents modelled on descriptions utilised by the plaintiff in one or more previous notices to produce, subpoenas or discovery applications.

   84. The capacity of the Commission to obtain such documents is heightened if, as may be the case, the documents have not been produced already by the Commission, particularly because the Commission does not have a copy of the document.

   85. Paragraph 9 of the subpoena, as stated, seeks the production of the Confidentiality Deed, purportedly signed by the plaintiff. On its face, there seems to be no adjectival relevance of such a document to the substantive issues in the proceedings and no attempt has been made by the Commission to justify its adjectival relevance.

   86. The plaintiff also objects to paragraph 11 of the subpoena, which seeks metadata from an alleged document that was the subject of prior communication between the parties. The plaintiff had served a notice to admit to the authenticity of the document on the defendant. The defendant has denied the authenticity of the document.

   87. The plaintiff submits that, as a consequence, seeking the metadata to the document cannot be a relevant enquiry. On the contrary, it seems to the Court that in circumstances where the authenticity of the document is in dispute, the metadata of the file from which the document was produced is highly relevant as to its authenticity.

   88. As a consequence, the information sought in paragraph 11, being the metadata to the disputed document, is adjectivally relevant to the issues in the proceedings. I turn then to the details.

   89. In relation to the discovery categories sought by the plaintiff, the Commission is required to produce to the Court all those documents that are within the categories outlined in paragraphs 1, 2, 3, 6, 8, 9, 10, 11, 12, 13, and, to the extent that it is narrowed to the dates between 1 July 2003 and 1 January 2005, category 16.

   90. In relation to categories 4, 5 and 7, I reserve to the Commission any further argument it may seek to raise in relation to those categories. On the material currently before the Court, it is unclear whether the nature of or kind of information that may be obtained in those categories is impermissible.

   91. As to paragraphs 14 and 15 of the discovery categories, such documents are not required to be produced. At this stage, except to the extent that such documents fall within those categories otherwise covered by other categories described in the document, those documents do not seem to be adjectivally relevant to the issues between the parties in the proceedings. Further, they, on their face, would seem to detail information that is part of the information gathering and collating purposes special to the Commission and protected by the terms of s 80 of the Act.

   92. In making the foregoing rulings, I reiterate that all of the material obtained in this proceeding has been the subject of suppression orders and orders preventing access and all of the material would be confidential. Further, to the extent that the material is produced and the content of the material reveals information that might be arguably covered by the provisions of s 80, it is still open to the Commission to address the Court on access to the documents and, to the extent that the Commission was successful, return of the documents and the vacating of the orders already made.

   93. The Commission raises an issue based upon what it submits are the proceedings being barred by operation of the Limitation Act. The proceedings are currently before the Court. No application has been made to strike out the proceedings on the basis of the limitations prescribed by the legislature as to the timing for the substantive claim.

   94. In those circumstances, it is not convenient nor within the primary objective of the Civil Procedure Act, which requires the Court to facilitate the just, quick and cheap resolution of the issues between the parties, for the Court to prevent parties obtaining access to documents adjectivally relevant to the proceedings by bringing forward an issue as to the operation of the Limitation Act in circumstances where none of the parties has sought to rely upon those provisions.

   95. It seems, on its face, that the categories of discovery are not oppressive or excessively broad. The plaintiff has already filed the statement of claim commencing the proceedings, which has been verified.

   96. There is nothing in the categories of documents sought by the plaintiff that suggests the plaintiff is fishing or seeking to determine whether the plaintiff has a case, rather than obtaining material that may be used in support of the case already alleged. If, as is suggested by the Commission, some of the documents are already in the possession of the plaintiff, that is not a reason why the documents ought not be produced, as possession of the documents by the Commission is relevant to the authenticity and provenance of the documents and is adjectivally relevant to an issue in the proceedings.

   97. I turn then to the motion to set aside the subpoena. I do not set it aside. To the extent that documents be in the possession of the plaintiff, those documents that are within categories 1, 2 or 3 are adjectivally relevant.

   98. It may be that there are no such documents in the possession of the plaintiff but that is not a basis upon which the subpoena ought to be set aside. Nor is it permissible to set aside the documents referred to in paragraphs 4, 5, 6, 7, 8, 9, 11, 12, or 13. I set aside the requirement sought to be imposed to produce the Confidentiality Deed, which, as stated, does not seem, on its face, to be adjectivally relevant to the issues between the parties.

   99. Lastly, I deal with the motion of the Attorney. As already stated, the Attorney is not a body that performs functions under the Act and, as such, on its face, the provisions of s 80(3) of the Act do not apply to the Attorney.

   100. At least some of the information sought to be obtained as a consequence of the exercise of a compulsive power of the Court from the Attorney has already been produced as a result of the application under freedom of information legislation. It is unnecessary for the Court to determine whether the requirement on a Commonwealth agency to adhere to the terms of that Commonwealth legislation would, on any analysis, override the provisions of s 80 of the Act. It is sufficient, for present purposes, to note that the information has already been divulged and has been divulged voluntarily (or under an obligation imposed by legislation). As a consequence, the terms of s 80 of the Act have no work to do.

   101. The reservation provided by the Court to the Commission, in relation to any particular document provided by it, applies to any document produced by the AFP. Those issues will become more obvious once the Court is apprised of issues arising from the redacting of documents already produced.

   102. For the foregoing reasons, the Court makes orders in accordance with the reasons herein, namely:

   1. The plaintiff’s motion seeking to set aside subpoenas issued by the New South Wales Crime Commission to the plaintiff, JG and the plaintiff’s solicitor is dismissed, except as to paragraph 10 of the aforesaid subpoenas;

   2. The plaintiff’s application for discovery in the categories attached to the plaintiff’s motion filed 26 August 2020 is granted, save as to paragraphs 14 and 15 thereof;

   3. Access to documents produced on subpoena by the Australian Federal Police is denied, subject to the production of redacted material by the defendant herein and subject to further order of the Court;

   4. The application by the Attorney seeking to set aside a subpoena addressed to him is dismissed;

   5. The costs of all motions be costs in the cause.

**********

Endnotes

Amendments

23 February 2021 - [47] Deleted: “that has already been answered”.

[49] Deleted: “The timeliness of that submission, in circumstances where the documents have already been produced, remains a mystery, except for the fact that production is defined in s 80 of the Act more broadly.”

[53]: Replaced: “Attorney” with “AFP”.

[99]: Replaced: “AFP” with “Attorney”.

[100]: Replaced: “AFP” with “Attorney”.

Decision last updated: 23 February 2021