Strange v Turnbull - [2018] NSWSC 898

Supreme Court

New South Wales

Medium Neutral Citation: Strange v Turnbull [2018] NSWSC 898
Hearing dates: 12 June 2018
Decision date: 12 June 2018
Jurisdiction: Equity
Before: Lindsay J
Decision:
Application to Set Aside Subpoena addressed to Corrective Services NSW dismissed

Catchwords: CIVIL PROCEDURE – Subpoenas – Application to set aside – Limits on the disclosure of personal information – Privacy and Personal Information Act 1998 (NSW) – Exemptions – Whether a public sector agency may disclose otherwise private information when subpoenaed – Audio record of phone calls made while party in custody – Subpoena not set aside.
Legislation Cited: Compensation to Relatives Act 1897 NSW
Conveyancing Act 1919 NSW
Privacy and Personal Information Protection Act 1998 NSW
Cases Cited: -
Texts Cited: -
Category: Procedural and other rulings
Parties: Plaintiff: Robert Strange
First Defendant: Robeena June Turnbull and Grant Wesley Turnbull as Executors of the Estate of the late Ian Robert Turnbull
Second Defendant: Robeena June Turnbull
Representation:
Counsel:
Plaintiff: L Judd
Defendants: T Alexis SC and D Mackay
Solicitors:
Plaintiff: Slater & Gordon
Defendants: Cole & Butler

File Number(s): 2016/00081312

JUDGMENT

On 29 July 2014, at a time when he was the owner of farming property near Moree in northern NSW, Ian Robert Turnbull (“Mr Turnbull”) shot and killed Glen Turner (“Mr Turner”), a government officer to whom he took exception.
Mr Turnbull was subsequently convicted of murder and sentenced to imprisonment. He died in gaol in March 2017. His deceased estate is represented in the current proceedings by his executors (his wife and his son, Grant), jointly described for the purposes of the proceedings as “the first defendant”.
The plaintiff in the current proceedings is a co-worker of Mr Turner who was present at the time of Mr Turner’s murder and who, in other proceedings, sues Mr Turnbull’s estate for damages for nervous shock.
In the current proceedings, the plaintiff invokes section 37A of the Conveyancing Act 1919 NSW to challenge the validity of transfers of property made by Mr Turnbull, in favour of his wife (in her own right, the second defendant), between January-October 2015 or thereabouts.
At that time, Mr Turnbull was held in custody by the NSW government agency known as “Corrective Services NSW”.
At the request of the plaintiff, on 20 February 2018, a subpoena for production was issued by the Court, addressed to Corrective Services NSW, seeking (in paragraph 2 of the schedule to the subpoena) the following class of documents or things:

“Audio and transcript of any recorded conversations between the former inmate known [as] Ian Robert Turnbull (DOB: 13/11/1934, who died in custody in Long Bay Correctional Complex on 27 March 2017) and Grant Wesley Turnbull and/or Robeena June Turnbull, including but not limited to recorded telephone calls which took place on 3 and 15 September 2014 and 9 and 14 October 2014, which became Exhibits AJ and AK in Supreme Court proceedings 223920 of 2014”.

Two computer disks have been produced by Corrective Services NSW in answer to this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Strange v Turnbull

Details

AGLC: Strange v Turnbull [2018] NSWSC 898
Case: [2018] NSWSC 898
Decision Date: 12 June 2018

CaseChat Overview and Summary

The case of Strange v Turnbull involved a dispute between the parties regarding the admissibility of evidence obtained through a subpoena. The matter was heard by the Supreme Court of New South Wales. The crux of the dispute was whether the subpoena, which sought personal information of the defendant, could be enforced given the potential breach of privacy legislation.

The central legal issue before the court was the interpretation of the Privacy and Personal Information Act 1998 (NSW) in the context of subpoenas issued by a public sector agency. Specifically, the court needed to determine if the agency could compel the disclosure of personal information that would otherwise be protected under privacy laws. The case hinged on the applicability of exemptions under the Privacy Act, particularly those related to the disclosure of personal information in the public interest and the limitations imposed on such disclosures.

The court carefully considered the provisions of the Privacy Act and concluded that while the Act sought to protect personal information, it did not entirely preclude the enforcement of subpoenas in all circumstances. The court found that the public interest in the enforcement of subpoenas in legal proceedings outweighed the privacy considerations in this instance, particularly given the nature of the information sought and the context of the case. As a result, the application to set aside the subpoena was dismissed, and the court ruled that the subpoenaed information could be disclosed.

Orders