The Commissioner of the Australian Federal Police v Cranston (No 5)

[2017] NSWSC 1850

Supreme Court

New South Wales

Medium Neutral Citation:	The Commissioner of the Australian Federal Police v Cranston and Ors (No 5) [2017] NSWSC 1850
Hearing dates:	17 July 2017
Decision date:	25 August 2017
Jurisdiction:	Common Law
Before:	Fullerton J
Decision:	The Notice to Produce, as recast, be set aside.
Catchwords:	Application for revocation of examination orders made under the Proceeds of Crime Act 2002 (Cth)
Legislation Cited:	Civil Procedure Act 2005 (NSW) Court Suppression and Non-publication Orders Act 2010 (NSW) Criminal Code Act 1995 (Cth) Proceeds of Crime Act 2002 (Cth) Taxation Administration Act 1953 (Cth)
Cases Cited:	R v Salem [1999] NSWCA 86 The Commissioner of the Australian Federal Police v McGlone [2016] NSWCA 103 The Commissioner of the Australian Federal Police v W [2016] NSWSC 683
Category:	Procedural and other rulings
Parties:	The Commissioner of the Australian Federal Police (Plaintiff) Jason Onley (2nd Defendant) Dev Menon (4th Defendant)
Representation:	Counsel: D McLure SC / G O’Mahoney (Plaintiff) R Johnson (2nd Defendant) P Bruckner (4th Defendant)   Solicitors: Criminal Assets Litigation, Australian Federal Police (Plaintiff) Pure Legal (2nd Defendant) Hardinlaw (4th Defendant)
File Number(s):	2017/146280

Judgment

1. HER HONOUR: Jason Onley and Dev Menon are the 2nd and 4th defendants respectively in civil proceedings brought by the Commissioner of the Australian Federal Police (“the Commissioner”) under the Proceeds of Crime Act 2002 (Cth) (“the POCA”) pursuant to a summons originally filed on 16 May 2017. The summons has been the subject of amendment since that date.

2. The substantive relief sought in those proceedings includes an order pursuant to s 116(1) of the POCA that both defendants pay a pecuniary penalty to the Commonwealth in an amount to be determined by the Court and a further order that property in which it is said they each have a relevant interest be forfeited to the Commonwealth pursuant to s 47 of the Act.

3. On 16 May 2017, I made orders under ss 18 and 19 of the POCA restraining a large number of individuals and entities (including the 2nd and 4th defendants) from dealing with the property itemised in the schedules to the summons. I also made orders ancillary to those orders including, relevantly for present purposes, an order under s 180 of the POCA that the 2nd and 4th defendants be examined in relation to their own affairs and in relation to the affairs of other named defendants (“the Examination Orders”), and an order under s 39(1)(ca) that they each provide of a sworn statement (“the Statement”) setting out their interests in property (as defined) and their liabilities.

4. On 16 May 2017, both defendants were charged with conspiring with other named defendants to dishonestly cause a loss to the Australian Taxation Office in the amount of $83,735,535.28 contrary to s 135.4(3) of the Criminal CodeAct 1995 (Cth). They were also charged with dealing with the proceeds of crime where the money or other property was valued at $1,000,000 or more contrary to s 400.3(1) of the Criminal CodeAct. Both offences were charged at the culmination of an investigation by the Australian Federal Police into a substantial and organised taxation fraud.

5. The criminal proceedings are currently being processed in the Local Court. The charges are strictly indictable. The brief of evidence is expected to be voluminous. On the assumption that the defendants intend to defend the criminal charges, and that the prosecution intends to present a joint indictment against all or even some of the alleged conspirators, the criminal proceedings are unlikely to be the subject of a committal for trial in the foreseeable future.

6. The examination of the 2nd defendant was originally listed to proceed on 13 June 2017 before an approved examiner in accordance with the procedure in Division 3 Chapter 3 of the POCA. The examination of the 4th defendant was scheduled to proceed on that date or soon thereafter. I understood at the time the Examination Orders were made that the scheduling of the examinations of all of the defendants who had received an examination notice under s 186 of the POCA, and the order in which the examinations were to be conducted, was with a view to the Commissioner gathering information to investigate and trace the proceeds of crime (including the proceeds of the alleged taxation fraud and the reinvestment of the proceeds of that offence) in a timely, efficient and structured way in accordance with the powers provided for in the POCA and consistent with the overriding purpose of the Civil Procedure Act 2005 (NSW).

7. On 27 June 2017, the 4th defendant served a further amended notice of motion seeking, inter alia, the following orders:

The Examination

1. The examination order be revoked under the POCA or set aside under rule 36.16(2)(b) of the UCPR.

2. In the alternative, there be no examination of the 4th defendant until the conclusion of the criminal proceedings which have been commenced against him.

3. In the alternative to 1 and 2:

(a) no question be asked in the examination proceedings that touches or concerns matters the subject of any criminal charge laid against the 4th defendant and possible issues in those proceedings which may reveal or disclose any defence.

(b) disclosure is prohibited to the authorities listed in s 266A of the POCA (including the ATO) or to any other person, of any responses to questions asked in examination or of any material produced in connection with the examination and any material obtained derivatively therefrom.

(c) no question may be asked in any examination of the 4th defendant arising from answers given or information obtained directly or derivatively from any examinations of the 1st, 2nd or 3rd defendants and Daniel Clarke.

(d) no person may be present at the examination other than the examiner, the legal representatives for the AFP quarantined from the prosecution, and the 4th defendant and any of his legal representatives.

(e) the Commissioner take sufficient steps to ensure compliance with (b) and (c) above.

The Sworn Statement

4. The order to provide the Statement is revoked or set aside.

5. The plaintiff is to destroy the Statement and any copies thereof.

6. The plaintiff is to destroy material obtained by or created derivatively from the Statement.

7. The plaintiff is restrained from using or relying upon the Statement and any derivative material.

8. In the alternative, the plaintiff be restrained from using or relying upon the Statement other than in these proceedings as ancillary to the restraining order for the purposes of making the restraining order effective.

9. That the Statement, any copies thereof and any and all information contained therein and any material obtained derivatively therefrom not be disclosed by the plaintiff to the authorities set out in s 266A(2) for the purposes there set out or any other purpose or to any other person.

8. On 4 July 2017, the 4th defendant’s notice of motion (together with notices of motion filed by the 1st, 2nd and 3rd defendants for similar relief) was listed for hearing on 12-14 September 2017. At that time, the Court noted the plaintiff’s undertaking that he will not seek to have those defendants examined before the notices of motion are heard and determined.

9. It is common ground that the hearing of the 4th defendant’s motion (and that of the 1st, 2nd and 3rd defendants) will invoke the operation of s 319 of the POCA. That section provides:

319  Stay of proceedings

(1)  A court may stay proceedings (the POCA proceedings) under this Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so.

(2) The court must not stay the POCA proceedings on any or all of the following grounds:

(a) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person subject to the POCA proceedings;

(b) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against another person in respect of matters relating to the subject matter of the POCA proceedings;

(c)  on the ground that:

(i) a person may consider it necessary to give evidence, or to call evidence from another person, in the POCA proceedings; and

(ii)  the evidence is or may be relevant (to whatever extent) to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person or any other person;

(d) on the ground that POCA proceedings in relation to another person have been, are to be or may be stayed.

(3) Paragraph (2)(a) applies even if the circumstances pertaining to the POCA proceedings are or may be the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings.

(4) Paragraph (2)(b) applies even if the subject matter of the POCA proceedings is the same as, or substantially similar to, the matter at issue in the criminal proceedings.

(5) Paragraph (2)(d) applies even if the staying of the POCA proceedings would avoid a multiplicity of POCA proceedings.

(6) In considering whether a stay of the POCA proceedings is in the interests of justice, the court must have regard to the following matters:

(a) that the POCA proceedings, and any criminal proceedings of a kind referred to in paragraph (2)(a) or (b), should proceed as expeditiously as possible;

(b) the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;

(c) the risk of a *proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;

(d) whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;

(e) any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.

10. On 19 June 2017, a notice was served on the Commissioner on behalf of both the 2nd and 4th defendants to produce documents in a number of categories which, as at the date of service, they must be taken to have contended would be documents that it was “on the cards” would materially assist in their application for a stay of the examination proceedings pending determination of the criminal proceedings, and the related relief sought in the notices of motion listed for hearing in September 2017 (see R v Salem [1999] NSWCA 86 at [11].

11. The Commissioner seeks an order pursuant to rule 34.2(1) of the UCPR setting aside the Notice to Produce as lacking any legitimate forensic purpose.

12. As originally served, the Notice to Produce sought the following:

3. Joint agency agreement between the AFP and the ATO in respect of Operations Elbrus; or

if there is no joint agency agreement or similar, all written communications, and records of the content of oral communications, between the ATO and the AFP which comprise offers or requests for assistance from the ATO to the AFP or vice versa in respect of Operation Elbrus, decisions to make such requests, reasons for decisions or material before the decision maker.

4. Joint agency agreement between the AFP and the ATO in respect of Operations Crocodile; or

if there is no joint agency agreement or similar, all written communications, and records of the content of oral communications, between the ATO and the AFP which comprise offers or requests for assistance from the ATO to the AFP or vice versa in respect of Operation Crocodile, decisions to make such requests, reasons for decisions or material before the decision maker.

5. Operation Elbrus Investigation Plan.

6. Operation Crocodile Investigation Plan.

7. Standard Tactical Plan relating to the execution of the respective Warrants.

13. The defendants were notified there were no documents satisfying the description of “joint agency agreements” in paragraphs 3 and 4.

14. On the hearing of that application, Mr Bruckner, counsel for the 4th defendant, advised that the description of the documents the subject of the alternative construction in paragraphs 3 and 4 had been recast. Mr Johnson, counsel for the 2nd defendant, adopted the same approach. He also adopted Mr Bruckner’s submissions in resisting the Commissioner’s application to set aside the Notice to Produce.

15. The recast category of documents in paragraphs 3 and 4 now reads:

All written communication between the ATO and the AFP which comprise offers or requests for assistance from the ATO (by itself or by the provision of secondees) to the AFP (by itself or by the provision of secondees) or vice versa in respect of Operation Elbrus or Operation Crocodile, in respect of assistance provided on or after 15 May 2017.

Paragraphs 5, 6 and 7 were pressed in their original terms.

16. Mr McLure, senior counsel for the Commissioner, referred to correspondence wherein the 4th defendant was invited to identify the way in which it was said that it would be “on the cards” that the documents the subject of the Notice to Produce (in its then unamended form) would yield relevant evidence as to the potential for any material compulsorily acquired in the examination process or in the statements of financial affairs to be proliferated such that it might be available for direct or derivative use in his criminal prosecution.

17. To the extent that there was an informed response to that inquiry prior to the hearing, at the hearing Mr Bruckner submitted that the effectiveness of any orders the Court might make under s 266A of the POCA prohibiting the disclosure of compulsorily acquired information to prosecuting authorities depends upon the integrity of systems within the Criminal Assets Confiscation Taskforce arm of the AFP (“CACT”) to ensure against the risk of leakage of that information. It was suggested that the intersection between the CACT arm of the AFP and the criminal investigation arm of the AFP and the ATO, in its performance of its tax collecting and tax assessing function, was such that there is a potential for inadvertent leakage of compulsorily acquired material between these agencies or their secondees (directly or derivatively) and that it is “on the cards” that both the fact and extent of that risk will be exposed on production of the documents sought under the notice.

18. In that same correspondence and on the hearing of the Commissioner’s application to set aside the Notice to Produce as recast, Mr Bruckner placed substantial reliance upon the decision of Adamson J in The Commissioner of the Australian Federal Police v W [2016] NSWSC 683 where, at [59]-[60], in the course of giving consideration to relevant matters under s 319(6) of the Act on the defendants’ application for a stay of the civil proceedings until the determination of the pending criminal proceedings, her Honour held that the prejudice to the defendants in the conduct of their defence at trial, either by electing to give evidence themselves in the civil proceedings or giving instructions for the cross-examination of the plaintiff’s witnesses in those proceedings, could not be overcome by orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) or an order to close the Court under s 319A of the Act. Her Honour said:

[59] I am not satisfied that the prejudice to the first defendant of being cross-examined in the civil proceedings or being required to give instructions for the cross-examination of the plaintiff’s witnesses could be overcome by means of orders under the Court Suppression and Non-publication Orders Act 2010(NSW) or an order to close the Court under s 319A of the Proceeds of Crime Act. Moreover, there is a risk that, whatever orders I might make, there will be disclosure of what occurs in the civil proceedings, through misunderstanding, inadvertence or mishap, to those involved in the prosecution. I consider that Mr Moses set the bar too high when he submitted that there was no basis for a “reasonable apprehension” of inadvertent disclosure. I consider it to be relevant to take into account the possibility of inadvertent disclosure, even though the prospects of its occurring may be adjudged to be low.

[60]If there was unauthorised disclosure, there would be a substantial risk that the criminal trial could not proceed in accordance with the listing, since it may be necessary for the prosecutor and other staff to be replaced by persons who were not party to the unauthorised disclosure, as was held to be required in Lee v The Queen[2014] HCA 20; 253 CLR 455, where unauthorised publication to the Director of Public Prosecutions of transcripts of examinations conducted by the Crime Commission took place. Although the risk of unauthorised non-disclosure may be regarded as slight, its potential to affect the criminal trial in a substantial way is also a matter to be taken into account.

19. Mr Bruckner submitted that her Honour’s approach exemplifies the fundamental importance of preserving the integrity of the criminal process against even the slightest risk that compulsorily acquired information might make its way to those responsible for the prosecution of the defendants in this case, as it does the corresponding need to accord that risk appropriate weight on an application brought under s 319 to stay the examination of the defendants and the related relief sought on that application. Mr Bruckner submitted that continued to be a relevant consideration on the defendant’s application for a stay (and related relief) despite the amendment to s 319 and the addition of s 319A.

20. Mr Bruckner anticipated that the Commissioner would rely upon evidence at the hearing of that application to demonstrate that the risk of inadvertent disclosure to prosecuting authorities of the information already compulsorily acquired and the information that would be acquired in the examination process was minimal and, that being the case, and after taking into consideration the mandatory criteria in s 139(6) of the Act, the Court would be satisfied it was “not in the interests of justice” that the stay be granted.

21. That evidence was comprised in two affidavits Mr Bruckner tendered at the hearing of the Commissioner’s application to set aside the Notice to Produce, being affidavits of Mr Stefan Jerga of 20 and 21 June 2017.

22. In his position as Manager and General Counsel of the Criminal Assets Litigation (“MCAL”) overseeing the Criminal Assets Litigation (“CAL”) function of the Criminal Assets Confiscation Taskforce (“CACT”) of the AFP, Mr Jerga deposes to the following:

1. The CAL function of the CACT is an operational legal function tasked with the conduct of proceeds of crime litigation under the POCA on behalf of the Commissioner in his capacity as the relevant Proceeds of Crime Authority, as that term is defined in the Act.

2. The CDPP ceased to be a member of the task force as at January 2012 retaining mainly a liaison role with other agencies.

3. In his role as MCAL, he is the only individual within the AFP who holds the delegated authority of the Commissioner to institute and conduct proceeds of crime litigation and is subject only to the Commissioner’s direction in relation to the commencement or conduct of that litigation.

4. The Commissioner has issued a Charter of Independence and Ethical Responsibilities pursuant to which CAL lawyers are obliged to act independently of any direction or influence from persons outside CAL in relation to the content or substance of the legal services they provide.

5. On 22 June 2017, a joint direction was to issue under the hand of Mr Jerga, in his capacity as MCAL with national oversight of CAL, and under the hand of Mr Crozier, the Manager of Criminal Assets, Fraud and Anti-Corruption (“MCAFAC”) with national oversight of the CACT. The effect of that joint direction is that appointees who are members of either CAL or CACT are to comply with the following directions in regards to information compulsorily disclosed to date under orders of the court or to be disclosed under compulsorily examination.

All AFP appointees who are members of either CAL or CACT are to comply with the following directions:

(a) Subject to an express written authority from MCAL, no person other than a member of CACT and CAL may receive compulsorily disclosed information;

(b) MCAL is the sole authority for:

(i) the disclosure of compulsorily disclosed information to any person outside CACT or CAL; and

(ii) disclosures of compulsorily disclosed information under s 266A of POCA.

(c) All compulsorily disclosed information is to be:

(i) if in electronic form, stored in a password protected location to which access is limited to members of CACT and CAL who have a need to access it;

(ii) if in physical form, stored in a location to which access is limited to members of CACT and CAL who have a need to access it;

(d) If the court makes a disclosure prohibition order, referred to in s 266A(2) of POCA, the CAL lawyer with the day to day carriage of the matter is to ensure that a copy of the order is provided to:

(i) MCAL;

(ii) Coordinator of Organised Crime & Cyber in the State or Territory in which the order was made;

(iii) the Team Leader in CACT with supervision of the matter in which the order was made;

(iv) any member of CACT and CAL having involvement in the POCA proceedings;

(v) the Superintendent with oversight of any related criminal investigation.

(e) Subject to an express written authority from MCAL, any person who has received compulsorily disclosed information must not have any role in related criminal investigation or prosecution;

(f) Each member of CACT and CAL is to read and sign this direction by 30 June 2017;

(g) MCAL is to ensure that any new AFP appointee to a role with CAL reads and signs this direction upon commencing duty;

(h) MCAFAC is to ensure that any new AFP appointee to a role with CACT reads and signs this direction upon commencing duty;

(i) Any AFP appointee to whom this direction applies who becomes aware of a breach of this direction is to notify MCAL of that matter in writing within 24 hours.

23. Mr Bruckner submitted that to the extent that the Commissioner will contend on the stay application that the risk of the inadvertent leakage of compulsorily acquired information is virtually non-existent because of the internal protections that the AFP have put in place to protect the integrity of litigation conducted under the POCA, including the conditions under which compulsorily acquired information is to be managed, it could not be said that the risk is neutralised completely. He also submitted that the risk of derivative use of the compulsorily acquired information was not addressed in Mr Jerga’s affidavits at all. Mr Bruckner submitted that, in any event, the defendants should be entitled to test the Commissioner’s contention by evidence and, since it is “on the cards” that the documents the subject of the Notice to Produce in its amended form would expose both the fact and extent of the risk of direct and derivative disclosure of compulsorily acquired information, the Commissioner’s application to set aside the Notice should be refused.

24. Mr Bruckner relied upon three documents as exemplifying the type of information which it would be “on the cards” would be within the recast description of documents.

25. Exhibit D is entitled “Joint Agency Agreement”. It concerned an agreement between the AFP and the ATO as at May 2014 in their conduct of a joint investigation into the suspected non-declaration of income of various individuals and entities unrelated to these proceedings. Mr Bruckner submitted that it was “on the cards” a “Joint Management Committee” and an “Operations Coordination Group”, as subgroups or subcommittees of the agencies who were party to the Joint Agency Agreement in Exhibit D might also exist as a subcommittee or groups with similar status in the criminal investigation arm of Operations Elbrus or Crocodile, and that information to which they might have access will likely be shared between them so as to provide a basis upon which to cross-examine the plaintiff in the pending stay applications.

26. Mr Bruckner placed emphasis upon the role which the ATO was defined to have in the Joint Agency Agreement in Exhibit D including, in particular, that “the ATO will provide resourcing support to any aspect of the investigation and prosecution as necessary to achieve operational objectives” and, further, that “the ATO will use its operational powers as necessary and share relevant material with the AFP as permitted by law”. He repeated the submission that it is “on the cards” that within the recast category of documents there will likely be an identification of resourcing support the ATO is providing to the Commissioner in the POCA proceedings (including the provision of information relating to any outstanding tax assessments of the defendants). He submitted that under examination the defendants will be obliged to answer questions concerning their taxation status information which might then, directly or derivatively, be made available to the prosecution in proof of the taxation fraud.

27. Exhibit E is a document headed “Standard Tactical Plan”. It is dated 23 January 2015 and relates specifically to the execution of search warrants for a joint AFP/ATO investigation into the same operation which was the subject of the Joint Agency Agreement in Exhibit D. In Mr Bruckner’s submission, one of the issues that it is anticipated will be raised in the forthcoming stay application is the extent to which databases utilised by the AFP and the ATO are shared (including the extent to which they share an interface) and that it is “on the cards” that documents within the reach of the Notice to Produce might reveal that fact.

28. Further, in Exhibit E Mr Bruckner focused on what was described as a “briefing session” at an AFP state office in 2015 at which ATO personnel were to be in attendance. Mr Bruckner submitted that this is an indication that the ATO may have a role in both assisting with the criminal prosecution of the defendants and a role in assisting the Commissioner in the civil proceedings and that the extent of that liaison is a matter the defendants are entitled to explore. He submitted that there is a real risk that compulsorily acquired information will leak through the ATO personnel, either directly, by personnel within the ATO serving two functions, or by reason of shared information databases. He submitted that there is nothing in the affidavit evidence he anticipates the Commissioner will rely upon on the stay application that addresses that risk.

29. Finally, in Mr Bruckner’s submission, Exhibit F, entitled “Investigation Plan” (the same joint operation between the ATO and the AFP the subject of Exhibits D and E), is also strongly suggestive of information sharing between the AFP and the ATO where there is a real risk of the leakage of compulsorily acquired information.

30. In seeking production of the documents under notice, Mr Bruckner submitted that the extent to which there are secondments between the AFP and the ATO is a matter of legitimate forensic interest and that the defendants are entitled to explore the potential for that to occur.

31. Mr McLure submitted that Mr Bruckner has failed to identify, with the necessary precision, any legitimate forensic purpose for production of any documents within the recast categories in the Notice to Produce.

32. In Mr McLure’s submission, they are confined to documents that may reflect the way information is or might be shared between agencies involved in or concerned with the criminal investigation of the defendants (including, it would seem, the role of the ATO in issuing assessments for outstanding tax liabilities), not whether there is any risk of compulsorily acquired information received by or in the custody of CAL or CACT leaking to the prosecuting authorities. To the extent that the documents that are sought might show the passage of information from the criminal investigators to the Commissioner as the plaintiff in the POCA proceedings, he emphasised those documents are irrelevant to any issue with which the stay application might be concerned since they could have no bearing on the principles arising from the “X7” line of authority.

33. He submitted that Exhibits D, E and F, upon which Mr Bruckner relied as evidencing the type of information that would be caught by the recast Notice to Produce, relate to the sharing or exchange of information between agencies involved with the AFP in the conduct of a criminal investigation, not the AFP, through the Commissioner, in its conduct of POCA proceedings wherein information is compulsorily acquired. In any event, he submitted Exhibits D, E and F are documents which predate the implementation of the dedicated systems and protocols referred to in detail in Mr Jerga’s affidavits which are directed to ensure against the risk of information compulsorily acquired in the civil proceedings under the POCA being available to the prosecuting authorities.

34. In addressing the particular passages of Exhibit D upon which Mr Bruckner focused in his submissions, Mr McLure drew what I accept is a material distinction between the information the ATO may legally share with the AFP under the governing sections of the Taxation Administration Act 1953 (Cth) in support of a criminal prosecution for taxation offences, and the dissemination of information to the ATO or the prosecuting authorities acquired compulsorily under the POCA, whether directly or derivatively.

35. He submitted that the Notice to Produce is not, in its terms, confined to documents in the latter category and it is not the function of the Commissioner upon whom the Notice is served or the Court to read the Notice down or to construe it narrowly.

36. Finally, Mr McLure submitted that to the extent that the defendants relied on the observations of Adamson J in W as requiring a Court in every case where a stay under s 319 of the Act is under consideration to take into account the possibility of inadvertent or unauthorised disclosure to those who have the conduct of the criminal proceedings, however remote that risk might be, that reliance is misplaced. He submitted that to the extent that the approach taken by Adamson J departs from the approach mandated in Commissioner of the Australian Federal Police v McGlone [2016] NSWCA 103, McGlone is to be followed.

37. I am not persuaded that the defendants have discharged the onus of demonstrating that it is “on the cards” that documents susceptible to being comprehended by the recast Notice to Produce are confined to documents that might yield evidence material to the issues to be litigated on the pending stay application, including the risk of a potential derivative use of compulsorily acquired information by officers of the ATO.

38. Accordingly, I order that the Notice to Produce, as recast, be set aside.

**********

Decision last updated: 21 March 2018