Strickland v State of NSW

[2016] NSWDC 30

District Court

New South Wales

Medium Neutral Citation:

Strickland v State of NSW [2016] NSWDC 30

Hearing dates:

15 March 2015

Date of orders:

23 March 2016

Decision date:

23 March 2016

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. The defendant's motion filed on 11 January 2016, as amended at the hearing on 15 March 2016, is dismissed, with the result that the documents in contention must be produced within 21 days of these orders;

 

2. The defendant is to pay the plaintiff's costs of the dismissed motion on the ordinary basis unless otherwise ordered, such costs to be assessed and paid forthwith;

 

3. Access to any documents the subject of the subpoena, including photocopy access to those documents, is to be restricted to the plaintiff, his legal representatives and any experts retained on the plaintiff's behalf, subject to any further orders of the court on an application of a party to vary this order;

 4. Liberty to apply on 7 days notice if further or other orders are required.

Catchwords:

PRACTICE & PROCEDURE – refusal of defendant’s application to set aside a subpoena which seeks the production of police documents and files connected to the plaintiff’s employment, and the employment of another named officer, and related matters

Legislation Cited:

Civil Procedure Act 2005, s 58(2)
Court Suppression and Non-Publication Orders Act 2010, s 7
Evidence Act 1995, s 192
Police Act 1990, s 170
Uniform Civil Procedure Rules 2005, r 1.9; r 19.6; r 33.4
Workplace Injury Management and Workers’ Compensation Act 1998, s 318

Cases Cited:

Alister v The Queen (1984) 154 CLR 404
GB v Greater Western Sydney Area Health Service [2010] NSWSC 181
Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666; (1976) 9 ALR 437
Portal Software v Bodsworth [2005] NSWSC 1115
Regina v Saleam (1989) 16 NSWLR 14
Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306
Waind v Hill & Anor (1978) 1 NSWLR 372
White v Tulloch (1995) 127 FLR 105

Category:

Procedural and other rulings

Parties:

Allan Strickland (Plaintiff)
State of NSW (Defendant)

Representation:

Counsel:
Mr S Hunt (Plaintiff)
Mr D Stanton (Defendant)

  Solicitors:
Shine Lawyers (Plaintiff)
Hunt & Hunt (Defendant)

File Number(s):

2015/254633

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, any publication of the name, address or personal details tending to identify the former police sergeant who is described in evidence and in the subpoenaed documents, and who is described in these reasons as Sergeant Z, is prohibited

Judgment

Notice of motion

1. This is a notice of motion filed on 11 January 2016, as amended on 15 March 2016, whereby the defendant, the State of New South Wales, pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005, seeks to set aside a subpoena issued on behalf of the plaintiff calling for the defendant to produce certain police files and documents.

2. The motion arises in the context of proceedings brought by the plaintiff, Mr Allan Strickland, against his employer, claiming damages for psychological injuries he incurred in the course of his employment with the defendant as a serving NSW police officer.

Factual background

3. The plaintiff’s claim is that between November 2002 and 25 August 2012, he had been subjected to numerous distressing and threatening events which amounted to cumulative stresses in the course of his work as a police officer.

4. Insofar as it is relevant to the determination of the motion, it is necessary to observe that part of the plaintiff’s case is that he claims to have suffered mental harm when, on 25 August 2011, whilst on duty at Broadmeadow Police Station, another police officer, a sergeant of police named for present purposes as Z, racked and pointed his Glock service pistol at the plaintiff’s head and pulled the trigger, thereby purporting to audibly discharge that weapon at a time when the plaintiff did not know the weapon was not loaded. The plaintiff has not worked since that time due to the effects of post-traumatic stress disorder which were exacerbated by that incident.

5. It is also relevant to note that one or two days earlier, whilst on duty, and to the knowledge of other police officers, Sergeant Z had, in the presence of other police officers at Broadmeadow Police Station, handled his weapon in an unauthorised manner and intimated that from where he was sitting, he could easily have shot another named police officer who was present at that time.

Suppression order

6. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, in the interests of the proper administration of justice, I make an order prohibiting the publication of the name, address or personal details tending to identify former Sergeant Z, who is not a party to these proceedings.

7. Although the principles of open justice limit the circumstances for making such orders, in this instance, I consider that the public interest in restricting access to the described police documents relating to Sergeant Z outweighs the public interest in ensuring open justice.

Evidence tendered on the motion

8. The amended schedule to the subpoena in question was marked Exhibit “A”. The folder produced by the defendant containing some 200 pages of partially copied and redacted documents which partly responds to the subpoena, was marked Exhibit “B”.

9. The affidavit of the plaintiff sworn on 23 February 2016 was read, as was the affidavit from the defendant’s solicitor, Anthony John Morrissey, sworn on 11 January 2016. No oral evidence was called on the motion.

Documents sought by the plaintiff from the defendant

10. The proceedings are at an early stage. The plaintiff’s legal advisors are, by the subpoena process, obviously engaged in the process of building his case for a hearing by either gathering or evaluating relevant evidence.

11. The 17 categories of documents sought by the plaintiff in the amended schedule to the subpoena, Exhibit “A”, can for present purposes, be conveniently summarised as follows:

1. NSW Police Force files including the plaintiff’s personnel file, medical file, discharge from police service file, workers’ compensation file, career path and transfer files, psychological files, and details of comparable earnings;

2. NSW Police Force investigation files relating to the involvement of Sergeant Z concerning the 25 August incident identified by the plaintiff, including all documents and records, the plaintiff’s ERISP statement, and all witness statements relating to the investigation of the described weapons incident which occurred on that date;

3. NSW Police Force files relating to Sergeant Z, including the personal file, the fitness to continue file, the psychological file, the workers’ compensation claims file, the notification of complaints file, the medical file, and the investigation file in relation to the 25 August 2001 incident.

Defendant’s concessions and objections to production of documents sought

12. The defendant conceded it was required to produce the plaintiff’s personnel file, medical file, medical discharge file, and documents relating to the plaintiff’s promotions and transfers. Those documents have already been produced.

13. The defendant ultimately agreed to produce the plaintiff’s workers’ compensation file, but production of that file has yet to occur. This will be the subject of orders I will make following the consideration of the matters for decision in this notice of motion.

14. The defendant also conceded it was required to produce part of the plaintiff’s psychological profile file. The conceded parts of that file have already been produced. Those parts to which the defendant objected to production, related to the records of the plaintiff’s psychometric testing.

15. The basis of the objection to the production of the plaintiff’s psychological test results was because it is said that it may not be in the plaintiff’s best interests that he see the report containing those test results. That position appears to be based on a note made by a police psychologist on 8 December 2015, noting that the test materials had been withheld.

16. Whilst that may have been a legitimate view on the part of the police psychologist, in a case which is based on the assessment and the evaluation of the plaintiff’s psychological status, although that material has not been presented to the court, I see no reasonable basis for such material being withheld. I consider that as a matter of general principle, the plaintiff and his advisors, and those treating him, have a legitimate interest and a right to see that material, absent the existence of a privilege that excuses production.

17. As a matter of practicality, the plaintiff’s treating practitioners are the persons who would have the most informed opinions on whether it would be in the plaintiff’s best interests to see that material. That said, it is a matter for the plaintiff alone to decide whether to accept advice along those lines. In the interim, I find there is no sound legal basis for withholding that material from production in answer to the amended schedule to the subpoena under present consideration.

18. The defendant maintained its objections to the production of all other listed categories of documents, apart from the complaints relating to Sergeant Z, which were conceded in the course of submissions.

19. The defendant’s objections to the production of all other documents centred around submissions as to relevance, and a claimed statutory protection or privilege from production based on s 170 of the Police Act 1990. Before considering those arguments it is necessary to identify the principles to be applied in determining the motion.

Principles to be applied

20. The principles to be applied to a consideration of whether or not the portions of the plaintiff’s subpoena which are objected to should be set aside, are helpfully set out and explained by Hall J in GB v Greater Western Sydney Area Health Service [2010] NSWSC 181, following Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115, at [24].

21. The parties are content that those principles may be conveniently summarised, with paragraph cross-references to the decision in GB v Greater Western Sydney Area Health Service [2010] NSWSC 181, as follows:

1. It is proper to set aside a subpoena if it is improperly issued and an abuse of power: GB v Greater Western Sydney Area Health Service, at [62];

2. In the case of the third parties or “strangers” to the litigation, as such, a subpoena represents an invasion of private rights, the court should “jealously consider any submission that the documents have no conceivable relation to the proceedings”: GB v Greater Western Sydney Area Health Service, at [63];

3. A subpoena will be found to be an abuse of process if:

1. there is no conceivable relevance of the subpoenaed documents to the issues in the proceedings, or

2. the subpoena is a fishing expedition, or

3. compliance with the subpoena is oppressive or vexatious in the sense of being seriously and unfairly burdensome to a party to whom it is directed: GBv Greater Western Sydney Area Health Service, at [64];

4. The test of relevance is a broad one, which includes the concept of “apparent relevance”: GB v Greater Western Sydney Area Health Service, at [68].

5. A document is relevant to the proceedings if:

1. The document “is likely to add in the end in some way or other to the relevant evidence in the case”: GB v Greater Western Sydney Area Health Service, at [69]; Waind v Hill & Anor (1978) 1 NSWLR 372, at p 382;

2. It has a “sufficient apparent connection [to the proceedings] to justify their production or inspection”: GB v Greater Western Sydney Area Health Service, at [70], following White v Tulloch (1995) 127 FLR 105;

3. It “could possibly throw light on the issues in the main case”: GBv Greater Western Sydney Area Health Service, at [70], following Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306;

4. In criminal proceedings, the document’s production appears “on the cards” to assist in the defence of the proceedings: GBv Greater Western Sydney Area Health Service, at [70], following Alister v The Queen (1984) 154 CLR 404, at p 414; Regina v Saleam (1989) 16 NSWLR 14, at p 18.

Consideration of the relevance argument

22. The defendant’s argument on relevance was a narrow one, based on the plaintiff’s existing statement of claim, and having regard to the statutory restrictions placed on the plaintiff’s entitlement to amend the pleadings on account of the considerations within s 318 of the Workplace Injury Management and Workers’ Compensation Act 1998, which require the plaintiff’s case to conform to the content of the pre-filing statement.

23. In my view, the plaintiff’s pleaded case, whilst containing general allegations of negligence of an omnibus nature, is sufficiently specific to make the subpoenaed documents relevant for production, subject to the consideration of other legitimate objections.

24. Furthermore, it must be recognised that there is scope for amendment where the dictates of justice indicate this to be appropriate: s 58(2) of the Civil Procedure Act 2005, UCPR r 19.6.

25. Scope for amendment to the statement of claim also exists in cases such as this to enable the inclusion of matters beyond the content of the pre-filing statement where this is reasonably indicated, such as where those matters were not reasonably available at the time of filing of the pre-filing statement, and in the absence of prejudice to the opposing party: s 318(2)(a) and (b) of the Workplace Injury Management and Workers’ Compensation Act 1998.

26. The discretion concerning such matters is a broad one which must ultimately be used to ensure that, provided no prejudice to the defendant arises, the plaintiff’s pleaded case accords with the evidence: Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666; (1976) 9 ALR 437.

27. In this instance, I see no relevant prejudice to the defendant, particularly since the documents in question belong to the defendant, and because a trial is some time away. In those circumstances, the defendant will have ample opportunity to meet a more precisely particularised case should the plaintiff choose to proceed down that path once the produced documents have been inspected and analysed.

28. Having considered the categories of documents which are the subject of the subpoena, I am satisfied that the plaintiff’s pursuit of the subpoena in question is not a fishing expedition. The documents in question have a conceivable relevance that is readily apparent to the issues in the case.

29. As such, the test of apparent relevance is satisfied because the documents sought are likely to add in some way or another to the relevant evidence the plaintiff intends to adduce in the case. The documents sought have a sufficient apparent connection to the proceedings to justify their production and inspection in that they would more than just possibly throw light upon the issues to be determined, namely the overall issue of negligence, and the question of damages.

30. The documents in contention will also assist to more accurately refine the evidence for the proper resolution of the case. For example, the plaintiff pleaded two matters relevant to the conduct of Sergeant Z. The main incident pleaded was that of 25 August 2012, in which the plaintiff was himself involved. The other incident, involving another officer and Sergeant Z, has been pleaded as having occurred on 23 August 2012, whereas the documents produced refer to that incident as having occurred “one or two” days before 25 August 2011. The clarification of such matters also justifies the production and inspection of the documents in the interests of justice between the parties: statement of claim filed on 26 August 2015, paragraph 5(9).

31. It remains to consider the submission that, as the documents in part relate to a “stranger” to the litigation, the court should “jealously consider” the submission that the documents have no conceivable relevance to the proceedings.

32. In my view, the documents the plaintiff seeks plainly have a relevance. I consider that the need to jealously guard the position of strangers to the litigation, in this instance, Sergeant Z, can be readily met by an order restricting access to the documents, and by the non-publication order already made.

33. I therefore reject the proposition that the subpoena in question should be set aside as being oppressive or unfairly burdensome on the producing party. The documents appear to be readily available and there is no suggestion that it would be burdensome to produce them in answer to the plaintiff’s subpoena. I also reject the proposition that the terms of the subpoena amount to an abuse of process, given my findings on the relevance issue.

Consideration of objection based on s 170 of the Police Act 1990

34. The defendant invoked UCPR r 1.9 to base an objection to the production of the documents sought on grounds that the documents comprised privileged information, which in this context is defined to include information “the admission or use of which in the proceedings would be contrary to any Act”.

35. In support of that argument, the defendant invoked the provisions of the Police Act 1990 as being an Act to which that principle should apply. In my view, UCPR r 1.9 does not assist the defendant in this instance.

36. Section 170 of the Police Act 1990 provides as follows:

170 Certain documents privileged

(1) A document brought into existence for the purposes of this Part is not admissible in evidence in any proceedings other than proceedings:

(a) that concern the conduct of police officers, and

(b) that are dealt with by the Commissioner, by the Industrial Relations Commission or by the Supreme Court in the exercise of its jurisdiction to review administrative action.

(2) Subsection (1) does not apply to or in respect of:

(a) a document comprising a complaint, or

(b) a document published by order of, or under the authority of, the Presiding Officer of a House of Parliament or either House, or both Houses, of Parliament, or

(c) a document that a witness is willing to produce.

(3) Subsections (1) and (2) do not operate to render admissible in evidence in any proceedings any document that would not have been so admissible if this section had not been enacted.

37. The defendant concedes that the plaintiff is entitled to see the documents comprising the complaints relating to Sergeant Z: s 170(2)(a) of the Police Act 1990.

38. The defendant’s objection which invokes s 170 of the Police Act 1990 centres around the notion of admissibility because of the terms of s 170(1) of that Act.

39. In my view, that argument overlooks the multiplicity of considerations that justify disclosure. The defendant’s focus on admissibility pursuant to s 170(1) is but one factor. Relevance is another factor. Non-admissible documents may nevertheless "add in the end in some way or other to the relevant evidence in the case”, as observed at sub-paragraph 5(a) of paragraph [20] above. They may be used, for example, to base a notice to admit facts, which, if denied, could then lead to other steps, such as interrogatories.

40. The production on subpoena of material that is not admissible in evidence may well have the effect of assisting the parties to evaluate other evidence or material, and which might aid the making of their respective forensic decisions.

41. In my view, the defendant has conflated the admissibility question with the question of the “use” to which the material could be put.

42. I therefore reject the defendant’s arguments based on the provisions of s 170 of the Police Act 1990.

Restrictions on access

43. The defendant argued that in the event an order is made for the disputed documents to be produced for access as sought by the plaintiff, as I have found should be the case, then restrictions should be placed on such access, pursuant to s 192 of the Evidence Act 1995.

44. Section 192 of that Act provides:

192 Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

(b) the extent to which to do so would be unfair to a party or to a witness, and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and

(d) the nature of the proceeding, and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

45. Having regard to those considerations, and as a consequence of my stated findings, I accept that it is necessary to place conditions on access to the documents to be produced on subpoena. Accordingly, that position will be reflected in my orders.

Disposition

46. The plaintiff has succeeded in resisting the defendant’s motion to set aside the subpoena. He is therefore entitled to production of, and access to, the documents he seeks.

47. Although the plaintiff’s entitlement to see those documents has been established, I consider that because of the sensitivity of the subject matter, access should be subject to restrictions as to which categories of non-parties should be permitted to see those documents before they are tendered in evidence at a trial.

Costs

48. As the plaintiff has successfully resisted the defendant’s motion, he is entitled to have his costs of resisting that motion paid by the defendant. If those costs are not agreed, they may be assessed forthwith for payment once they are either agreed or assessed.

Orders

49. I make the following orders:

1. The defendant’s motion filed on 11 January 2016, as amended at the hearing on 15 March 2016, is dismissed, with the result that the documents in contention must be produced within 21 days of these orders;

2. The defendant is to pay the plaintiff’s costs of the dismissed motion on the ordinary basis unless otherwise ordered, such costs to be assessed and paid forthwith;

3. Access to any documents the subject of the subpoena, including photocopy access to those documents, is to be restricted to the plaintiff, his legal representatives and any experts retained on the plaintiff's behalf, subject to any further orders of the court on an application of a party to vary this order;

4. Liberty to apply on 7 days notice if further or other orders are required.

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Decision last updated: 24 March 2016