White v South Australia - [2007] SASC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
WHITE & ORS v THE STATE OF SOUTH AUSTRALIA & ORS
[2007] SASC 75
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice Anderson)
7 March 2007
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN - PROCEEDINGS BY AND AGAINST THE CROWN - DISCOVERY BY AND AGAINST THE CROWN
CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN - PROCEEDINGS BY AND AGAINST THE CROWN - ACTIONS AGAINST THE CROWN UNDER STATE STATUTES - SOUTH AUSTRALIA
The appellants (defendants at trial) made discovery of certain documents over which “immunity from production” was claimed pursuant to s 48(7) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) – the claim of immunity was challenged by the respondents (plaintiffs at trial) and upheld by a Master – a single Judge of the Supreme Court allowed an appeal against the Master’s order – the appellants appeal to the Full Court against the Judge’s order- the proceedings concern the conduct of police officers monitoring a protest at an uranium mine in South Australia and the production by the Police Complaints Authority of documents purportedly related to the protest – the appellants do not deny that the documents are in the custody power or control of the police officers named in the proceedings – the documents are also in the custody of the Crown Solicitor for South Australia – whether the claim of immunity can properly be supported by s 48(2) and s 48(7) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) – the sections create secrecy requirements which prohibit the disclosure of documents of the kind sought by the respondents – the statute contemplates that only the Police Complaints Authority or the police officer in command of the Internal Investigation Branch may authorise the production of documents – consideration of s 48(4) or s 48(7) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) – these sections require the disclosure of documents if it can be said that there are "special reasons" for doing so and that the interests of justice cannot be served except by an order for production – consideration of the forensic disadvantage for the respondents if the documents are not produced – "special reasons" do exist, that is reasons beyond the ordinary requirements for production, yet in all the circumstances of the case these reasons are not reasons which require the Court to order production – appeal allowed.
Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) s 5(1), s 13, s 14, s 22A, s 22A(2), s 22A(3), s 23, s 25(3a), s 25(5), s 25(8), s 28, s 28(3a), s 28(6), s 28(7), s 28(10), s 28(11), s 28(12), s 28(13), s 31, s 32, s 36, s 48, s 48(2), s 48(4), s 48(4)(c), s 48(7), s 48(7)(c); Crown Proceedings Act 1992 (SA) s 5(1), s 5(2); Police Act 1998 (SA) s 6, s 65(1), s 65(2); Supreme Court Rules 1987 r 58A.02(1), r 58A.03, r 59.01(a); Police (Complaints and Disciplinary) (Miscellaneous) Amendment Act 2000 (SA) s 11, referred to.
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531, applied.
Norton & Co v Lamport Holt & Co (1886) 2 TLR 630; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, distinguished.
Turner v Davies [1981] 2 NSWLR 324; Langford v Cleary (1993) 2 Tas R 1; Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22; Deputy Commissioner of Taxation v State Bank (NSW) (1991) 174 CLR 219; TransAdelaide v Evans (2005) 240 LSJS 60; Goldsmith v Newman (1992) 59 SASR 404; Roux v Australian Braodcasting Commission [1992] 2 VR 577; B v B [1979] 1 All ER 801; Wentworth v De Montfort (1988) 15 NSWLR 348; O'Shea v Wood [1891] P 286; R v Ferri (2002) 220 LSJS 155; North Australian Territory Co v Goldsborough Mort & Co [1893] 2 Ch 381; Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"special reasons"

WHITE & ORS v THE STATE OF SOUTH AUSTRALIA & ORS
[2007] SASC 75
Full Court: Doyle CJ, Debelle and Anderson JJ

DOYLE CJ: The defendants in civil proceedings in this Court made discovery (by filing a list of documents) of certain documents. They claimed “immunity from production” relying on s 48(7) of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) (“the CDP Act”). A Master dismissed an application by the plaintiffs for an order for the production of the documents. The Master upheld the claim of immunity. On appeal a Judge allowed the appeal and ordered the defendants to produce the documents for inspection. The defendants have appealed to the Full Court, by leave of the Judge.
Two issues arise on the appeal. First, whether the claim of immunity from production is supported by s 48(2) or by s 48(7) of the CDP Act. Second, whether nevertheless the Court should exercise the power conferred by s 48(4) or by s 48(7) of the CDP Act and order disclosure of the documents.
The proceedings
There are twelve plaintiffs. They have sued 25 members (“the named defendants”) of South Australia Police (“SA Police”) and the State of South Australia.
The claims arise from the manner in which the named defendants, in their capacity as members of SA Police, dealt with the plaintiffs in the course of demonstrations by the plaintiffs and others at a uranium mine near Arkaroola in northern South Australia.
The plaintiffs claim damages from the defendants for personal injury, for false imprisonment and for damage to and loss of property. The causes of action that they raise are false imprisonment; assault; trespass to goods; conversion of personal property; malicious prosecution and unlawful conspiracy to injure the plaintiffs.
The State of South Australia is joined as a defendant relying on s 5(2) of the Crown Proceedings Act 1992 (SA), pursuant to which proceedings may be brought “by or against the Crown” under the name “The State of South Australia”. The Statement of Claim alleges that the State is liable for the conduct of the other defendants by virtue of s 65 of the Police Act 1998 (SA) which provides:
65    Protection from liability for members of S.A. Police
(1)     A member of S.A. Police does not incur any civil liability for an honest act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this or another Act or any law.
(2)     A liability that would, but for subsection (1), lie against a member of S.A. Police lies against the Crown.
The Statement of Claim also alleges that the State owed the plaintiffs a duty “to ensure, in so far as was reasonable, that the [named defendants] were properly trained and instructed”, in relation to various aspects of the manner in which they dealt with the plaintiffs on the occasion in question.
The defence admits that the named defendants were members of SA Police. It does not deny that the State is liable for their acts or omissions.
The Police Complaints Authority is appointed to that office under s 5(1) of the CDP Act. The functions of the Police Complaints Authority (“The PCA”) are to investigate complaints about the conduct of a member of the police force and to investigate possible misconduct on his or her own initiative: s 22A. The PCA also has the function of considering a report on investigations into complaints, making assessments of the conduct of members of the police force, and recommending whether disciplinary action should be taken: s 32 of the CDP Act. The CDP Act contains provisions that regulate in detail the manner in which complaints are dealt with. The Act provides that when a complaint is made the Commissioner of Police must arrange for the complaint to be investigated by the internal investigation branch of the police force, a separate branch required to be established by s 13 of the CDP Act. However, the PCA has power to determine in specified circumstances that the PCA will investigate a matter: s 23. The officer in charge of the internal investigations branch must report on completion of an investigation to the Commissioner of Police, who is required to furnish that report to the PCA: s 31.
The CDP Act contains provisions which enable the PCA to direct that persons from whom information is sought in the course of an enquiry must not disclose the fact that an investigation is being carried out: see, for example, s 25(3a) and s 28(3a). The CDP Act contains a number of provisions enabling the PCA to require the provision of information and materials. A number of these powers are found in s 28. A member of the police force is not permitted to refuse to answer questions or provide information on the grounds that the answer might tend to show that the member has committed a breach of discipline: s 28(12). However, a person can refuse to provide information or answer questions on the grounds that the answer might tend to incriminate the person or a close relative, but any such refusal on the part of a member of the police force may be dealt with as a breach of discipline: s 28(13). The secrecy provisions in question are found in s 48 of the CDP Act. It is necessary to set out that section in full. It provides:
48   (1)      In this section —
"prescribed officer" means —
(a)a person acting under the direction or authority of the Authority; or
(b)a member of the internal investigation branch or any other member of the police force,
but does not include the Authority or the Commissioner;
"relevant person" means —
(a)in relation to a person who is or has been acting under the direction or authority of the Authority — the Authority; or
(b)in relation to a person who is or has been a member of the police force — the Commissioner; or
(c)     in any case — the Minister.
(2)     Except as required or authorised by this Act or by a relevant person, a person who is, or has been, a prescribed officer must not, either directly or indirectly, make a record of, or divulge or communicate, information acquired by reason of his or her being, or having been, a prescribed officer, being information that was disclosed or obtained under this Act.
Maximum penalty: $2 500 or imprisonment for 6 months.
(3)     Where the Commissioner furnishes to the Authority a certificate certifying that the divulging or communication of information specified in the certificate, being information that has been disclosed to the Authority by a member of the police force or obtained by the Authority from records of the police force, might —
(a)prejudice present or future police investigations or the prosecution of legal proceedings whether in the State or elsewhere; or
(b)    constitute a breach of confidence; or
(c)endanger a person or cause material loss or harm or unreasonable distress to a person,
then, despite any other provisions of this Act, a person who is, or has been, the Authority or a person acting under the direction or authority of the Authority must not, either directly or indirectly, divulge or communicate any part of the information except with the approval of the Commissioner or the approval of the Minister given after consultation with the Commissioner.
Maximum penalty: $2 500 or imprisonment for 6 months.
(4)     This section does not prevent a person who is or has been a prescribed officer from divulging or communicating information disclosed or obtained in the course of an investigation under this Act —
(a)in proceedings before a court, the Tribunal or the Commissioner in respect of —
(i)an offence; or
(ii)a breach of discipline,
relating to a matter the subject of the investigation; or
(b)as required in proceedings under the Royal Commissions Act 1917; or
(c)as required by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order.
(5)     This section does not prevent a person who is or has been a prescribed officer from whom information has been sought in the course of an investigation under this Act from consulting —
(a)a legal practitioner; or
(b)some other person with the Minister's approval (which may be a general approval or given in a particular case),
in relation to the matter under investigation.
(6) This section does not prevent a person who is or has been a member of the police force whose conduct has been under investigation under this Act from divulging or communicating particulars of the outcome of the investigation as furnished or registered under section 36 (including any comments made by the Authority when furnishing any of those particulars).
(7)     Despite any other Act or law, a person who is or has been the Authority or the Commissioner cannot be required to divulge information disclosed or obtained under this Act in the course of an investigation except where such a requirement is made —
(a)in proceedings before a court or the Tribunal in respect of —
(i)an offence; or
(ii)a breach of discipline,
relating to a matter the subject of the investigation; or
(b)in proceedings under the Royal Commissions Act 1917; or
(c)as required by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order.
(8)     If a person consulted under subsection (5) obtains information as a result of the consultation that the person who initiated the consultation is (apart from that subsection) prohibited from divulging or communicating, the person so consulted must not divulge or communicate that information.
Maximum penalty: $2 500 or imprisonment for 6 months.
Very shortly after the events the subject of the proceedings, the PCA exercised his powers under s 22A of the CDP Act to investigate the conduct of the police officers involved in the incident. The PCA determined pursuant to s 22A of the CDP Act that the investigation would be undertaken by the PCA in conjunction with officers of the internal investigation branch.
A large number of people were interviewed in the course of the investigation, including members of SA Police. Some of the plaintiffs provided statements. Many documents relevant to the events the subject of the action were collected in the course of the investigation. All of this material was collected for the purposes of the investigation undertaken by the PCA.
The PCA produced a very detailed report on the investigation. That report is in possession of the plaintiffs. I gather that it was provided to those of the plaintiffs who complained to the PCA about the conduct of members of SA Police, pursuant to s 36 of the CDP Act which requires the PCA to furnish to a complainant particulars of all assessments and recommendations made by the PCA in relation to the matter of the complaint.
The defendants’ list of documents is dated 10 February 2004. It was filed pursuant to r 58A.02(1) of the Supreme Court Rules 1987. The defendants made discovery of:
The documents which are at present in the possession, custody or power of that party.
Rule 58A.03 requires discovery to be made in those terms.
The second group of documents discovered in the list was identified as documents:
(b)for which immunity from production is claimed pursuant to section 48(7) of the Police (Complaints and Disciplinary Proceedings) Act 1985 are:-
correspondence, memoranda, notes of interviews, statements and various documents prepared by, on behalf of or at the direction of the Police complaints Authority or the Police internal investigation branch for the purposes of investigation into events at the Beverley Uranium Mine involving the South Australia Police in May 2000, and specifically including …
There follows a detailed list of the documents in respect of which immunity is claimed. Many of them are statements by named persons, or transcripts of interviews with named persons. Files of the PCA and of the internal investigation branch are also listed. I will refer to this group of documents as “the contested documents”.
The PCA filed an affidavit (sworn on 12 January 2006) for the purposes of the application for an order for production of the contested documents. The relevant paragraphs are as follows:
6At the commencement of the within proceedings the complete files of the PCA in relation to the investigations were provided to the Crown Solicitor’s Office with my consent.
7The files referred to in paragraph 6 above contain information which was disclosed or obtained under the Act in the course of an investigation. Those documents attract the cover of the secrecy provisions contained in section 48 of the Act and can only be disclosed by Court order pursuant to section 48(7)(c) of the Act or with the consent of the PCA (section 48(2) of the Act).
8I provided instructions to the Crown Solicitor’s Office by letter dated 2 February 2004 consenting to the discovery and production of documents contained within the PCA files which:
(a)     came into existence prior to, or otherwise independently of, one of the investigations; or
(b)     statements and transcripts of interview and information provided by individuals who are now plaintiffs in these proceedings.
9I do not give my consent to the production to the plaintiffs of those documents referred to in the Defendants’ List of Documents as documents C2 – O17. Those documents are comprised of the following broad categories:
(a)     all statements and records of interview of individual defendants which were taken by the PCA or by officers of the IIB on behalf of the PCA, for the purpose of the investigations, including audio and electronic records of interviews;
(b)     statements and records of interview of third parties who have not become parties to these proceedings, which were taken by the PCA, or by officers of the IIB on behalf of the PCA, for the purpose of the investigations; and
(c)     correspondence, memoranda, file notes and other records prepared by the PCA for the purpose of the investigations.
An affidavit was also sworn by Mr Cornish, the police officer in charge of the internal investigation branch. The relevant paragraphs of his affidavit are as follows:
6At the commencement of the within proceedings the complete files of the IIB in relation to the investigations were provided to the Crown Solicitor’s Office with my consent.
7I do not give my consent to the production to the plaintiffs of those documents referred to in the Defendants’ List of Documents as documents C2 – O17. Those documents are comprised on the following broad categories:
(a)     all statements and records of interview of individual defendants which were taken by officers of the IIB for the purpose of the investigations, including audio and electronic records of interviews;
(b)     statements and records of interview of third parties who have not become parties to these proceedings, which were taken by officers of the IIB for the purpose of the investigations; and
(c)     correspondence, memoranda, file notes and other records prepared by the IIB for the purpose of the investigations.
Does s 48(7) have the effect of disabling the defendants from producing the contested documents?
It is the defendants who have made discovery of the contested documents, and who are called upon to produce them. But if s 48(7) of the CDP Act applies to the documents, the defendants cannot produce them unless permitted by the PCA and by Mr Cornish to do so.

The defendants have said that the contested documents are in their possession, custody or power.
The meaning of those terms is summarised by Byrne J in Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 589. A person has custody of a document if he or she has “corporeal possession” of it whether or not by this is accompanied by a right to possession, and whether or not the party is constrained by a contract from dealing with the document.
On an application or request for production it remains open to the defendants to establish that they have mere custody of the contested documents and are not the owners of the documents, and to argue that for some reason there is a legal restraint on their ability to produce them for inspection. That is, in effect, what the defendants assert.
The Court can order production, under r 59.01(a) of the Supreme Court Rules, of a document of which a party has mere custody, or of which the party has custody as a servant or agent or on behalf of another: Turner v Davies [1981] 2 NSWLR 324; Langford v Cleary (1993) 2 Tas R 1. In some cases it may be necessary for the party seeking production to seek an order under r 60 for discovery by the person (not a party) who has the right to control the document in question.
While the Court has power to order the production of a document of which a person has mere custody, the Court must consider whether it is appropriate to do so. But in the present case, the power of the Court to order production under the Supreme Court Rules cannot override a statutory entitlement of the PCA and of the Commissioner of Police (through Mr Cornish) to decline to divulge the information contained in their files, if that entitlement exists. If their files remain subject to their control, to the extent necessary to permit them to exercise their entitlement under s 48(7), an order for production should not be made, and if made would have no effect. In those circumstances the plaintiffs can get production of the contested documents, and access to the information contained within them, only if the Court makes an order under s 48(7)(c).
So the question becomes whether the contested documents remain under the control or power of the PCA and the Commissioner, such that the production of the documents (or other uses of them) is for them to decide. In the circumstances of this case the question is whether the fact that the PCA and Mr Cornish sent their files to the Crown Solicitor means that the contested documents are no longer under their control to the extent required to enable them to assert that the information in the contested documents is not to be divulged, even though the contested documents are in the custody of the named defendants. The defendants argue that although the contested documents are in their custody, the documents remain subject to the control of the PCA and of the Commissioner.
The plaintiffs’ argument is straight forward. It is the defendants who have the documents in their possession, custody or power. They have said so. The affidavits of the PCA and of Mr Cornish depose to the documents having been provided to the Crown Solicitor. Neither affidavit asserts that when the files were sent to the Crown Solicitor any restraint was imposed on their use or production. Accordingly, the PCA and Mr Cornish must be taken to have authorised the defendants to divulge the documents. Having done so when the files were sent to the Crown Solicitor, it is now too late for the PCA and Mr Cornish to change their minds. In any event, they no longer have the contested documents under their control. The plaintiffs further submit, and the Judge agreed, that it is the State of South Australia through the Crown Solicitor that has possession, custody or power over the documents, and that s 48(2) does not bind the State.
I do not accept these submissions.
First of all, the State of South Australia is named as a kind of nominal defendant. It is named as a means of bringing proceedings against the Crown, and to enforce the liability of the Crown under s 65 of the Police Act. The State is not a person or body corporate for these purposes. It does not have possession or custody of or power over the documents in its own right, or through the Crown Solicitor. It is, as I have already said, a kind of nominal defendant.
For the purposes of questions that might arise under the Australian Constitution, the State may be treated as a “politically organised body”, capable of entering into legal relationships and of exercising the powers and capacities of a separate legal entity: see Crouch v Commissioner for Railways(Qld) (1985) 159 CLR 22 at 29 and 39-40; Deputy Commissioner of Taxation v State Bank (NSW) (1991) 174 CLR 219 at 229-230. And in some contexts it may be that the State of South Australia acts as a legal person or entity by, for example, entering into contracts in that name. But when named as a defendant pursuant to the Crown Proceedings Act it is no more than a convenient name or title by which a claim is made against the Crown. The concept of a claim against the Crown, and what is the Crown for a particular purpose, has its own complexities: see TransAdelaide v Evans [2005] SASC 75; (2005) 240 LSJS 60 at [27]-[28] Doyle CJ. Those complexities can be put aside for present purposes. It suffices to say that the contested documents are not, in my opinion, in the possession, custody or power of the State, even though the State is named as a defendant in the proceedings. But even if I am wrong in that, and the State is to be treated as having the documents in its possession, power or custody, through the Crown Solicitor, it would still be necessary to consider whether or not the PCA and the Commissioner have lost the ability to assert their entitlement under s 48(7) of the CDP Act.
The list of documents must be understood as admitting and asserting that the contested documents are in the possession, custody or power of the 25 members of SA Police who are named as defendants.
It may be, as Mr Kourakis QC SG for the defendants asserts, that the Commissioner of Police is to be treated as a defendant in the action as well. The alleged duty to ensure that the members of SA Police were properly trained is owed, if at all, by the Commissioner of Police. By s 6 of the Police Act he “is responsible for the control and management of SA Police”. The State is not. But this point can be put to one side, because the plaintiffs can treat the list of documents as an assertion by the 25 members of SA Police that they also have the documents in their possession, custody or power, even if the Commissioner does as well.
But the submission of Mr Walters SC for the plaintiffs overlooks the fact that the defendants are entitled to resist production of the documents, even though they have discovered them, if it is not in their power to produce them.
The question is whether the Court should conclude that the contested documents are not the defendants’ property, and that although they may be in their custody (through the Crown Solicitor acting as their solicitor) the contested documents are the property of the PCA and of the Commissioner of Police, and remain subject to their control, and in particular to the provisions of s 48(7) of the CDP Act.
In my opinion that is the appropriate conclusion, despite the surprisingly sketchy nature of the affidavits filed by the PCA and by Mr Cornish. There is no reason to think that, by providing their files to the Crown Solicitor, the PCA or the Commissioner intended to put an end to their ownership of the documents.
Nor is there any reason to think that by providing the documents to the Crown Solicitor they intended to surrender their ability under s 48(7) to refuse to disclose the contents of their files. One might have expected them to make this clear when forwarding the files to the Crown Solicitor, and to have said so in their affidavits. But despite the sketchy nature of the affidavits, I am satisfied that that must be the situation. There is no reason why the PCA or the Commissioner would have intended to authorise the 25 police officers in question to do whatever they might wish with the confidential information in the files. The appropriate inference in the circumstances is that the files were provided to the Crown Solicitor to enable the Crown Solicitor, in the course of conducting the defence of the action, to make recommendations and advice to the PCA and to the Commissioner as to the use to which the files should be put, and to have access to them for the purposes of providing such advice and recommendations. There is equally no reason to think that the PCA or the Commissioner surrendered to the Crown Solicitor the ability to decide what would be done with the contents of the files.
Nor should the fact of providing the files to the Crown Solicitor, without a stipulation that any divulging of their contents was subject to the approval of the PCA and of the Commissioner, be treated as a waiver of or relinquishment of their power under s 48(7) to decline to divulge information. The act of providing the documents to the Crown Solicitor does not, of itself, suggest or imply any such intention. The plaintiffs cannot claim that the provision of the files to the Crown Solicitor was treated by them as such a waiver or relinquishment, and that hey have acted to their detriment on that basis.
In short, in my opinion there is nothing in the circumstances to warrant a conclusion that by forwarding the relevant files to the Crown Solicitor the PCA or the Commissioner agreed that they should be disclosed to the plaintiffs, or agreed to authorise the named defendants or the Crown Solicitor to decide whether and when the files should be disclosed to the plaintiffs. The files remain their property. There is no reason to think that they are not entitled to require that the files be returned to them. They are entitled to exercise their rights as owners of the documents, including their entitlement to rely on s 48(7). Having regard to the considerable emphasis in the CDP Act on protecting information acquired in the course of investigations under the CDP Act, it would be surprising if the PCA or the Commissioner left it to the named defendants or to the Crown Solicitor to decide what was to be done with the contents of the files.
It may be, as Mr Walters submits, that it is up to the defendants to establish the basis upon which they cannot be required to produce the documents. If the burden of proof is on the defendants, I am satisfied that in the circumstances they have discharged it, even though the information provided by them is very limited.
I add that in my respectful opinion Mr Walters’ submission that the immunity (as he called it) under s 48(7) does not apply to those who invoke it (the defendants) misconceives the situation. The defendants have custody of the contested documents. But if those documents are the property of the PCA and of the Commissioner, remain subject to their control and are subject to the provisions of s 48(7), then the defendants are not in a position to produce them to the plaintiffs, as a matter of law, unless the PCA and the Commissioner agree.
Does s 48(2) have the effect of disabling the defendants from producing the documents?
In his submissions Mr Kourakis did not argue that s 48(2) bound the named defendants not to divulge the information in the form of the contested documents.
The named defendants are prescribed officers, because they are members of the police force. The contested documents are information “that was disclosed or obtained under this Act”: s 48(2). If the contested documents are information that the defendants acquired by reason of their being prescribed officers, the prohibition applies.
I doubt whether s 48(2) is limited to information acquired by a member of the police force investigating a matter under the CDP Act. I see no reason why it would not apply to a police officer responsible for the filing of records, or to a police officer who is asked to deliver documents from, say, the internal investigations branch to the PCA. It might be said in the present case that the defendants acquired the information by reason of their being members of the police force, if the inference were drawn that the PCA and the Commissioner sent the files to the Crown Solicitor because the defendants in the action were members of the police force.
However, as this aspect of the matter was not canvassed in any detail, I take it no further.
Should the Court require that the information be divulged?
The Court has power to require the information to be divulged under s 48(7)(c).
During the course of submissions Mr Kourakis acknowledged that the files were provided to the Crown Solicitor to enable the Crown Solicitor to provide advice to the defendants in connection with the action. He maintained that the files remained under the control of the PCA and of the Commissioner.
The Judge below held that the Court should require the information to be disclosed. He said:
63In particular, I do not think that it is right that the PCA or the Commissioner should be entitled to pick and choose to which parties to civil litigation they are prepared to release information obtained during the course of their investigations, and then purport to restrict access by other parties. If they were to be permitted to do so, they could effectively destroy the level playing field that should exist between the parties to litigation with respect to discovery and inspection of documents.
64In my view, it would be wrong and contrary to the interests of justice to confer an unfair advantage on one party to litigation at the expense of other parties in such circumstances.
I respectfully disagree.
The Judge said that he was exercising a discretion. In my respectful opinion the Court does not exercise a discretion when it makes an order under s 48(7)(c). It may make the order only if the statutory criteria are satisfied.
I have already referred to the fact that the CDP Act has a number of provisions that emphasise the confidential aspect of investigations undertaken by the PCA and by the internal investigation branch under the CDP Act. There are no doubt a number of reasons for this. First, there may be a need to protect complainants. Confidentiality may also be required to encourage complainants to come forward, in the knowledge that their complaint will be treated as confidential. In some cases there will be a need for the fact of investigation, and its scope, to be kept confidential. If it is not, the persons under investigation might have the opportunity to destroy or to conceal relevant material, or to put their heads together. An investigation under the CDP Act will usually involve the scrutiny of the internal operations of the police force, and there may be aspects of this that should be treated as confidential. There may also be a need to keep confidential the investigation methods used by the internal investigation branch. It is also possible that disclosure of information acquired in the course of an investigation might prejudice the investigation of crimes by the police force: see s 48(3) of the CDP Act (above).
Bearing all those factors in mind, it is not surprising that there should be secrecy obligations imposed by the CDP Act. Nor is it surprising that the standard set by s 48(7)(c) is as stringent as it is. The Court must be satisfied that there are “special reasons requiring the making” of an order, and in addition “that the interests of justice cannot adequately be served except by the making of” an order.
The expression “special reasons” must always be interpreted in light of its context: Goldsmith v Newman (1992) 59 SASR 404 at 409.
In the context of the CDP Act, and having regard to the sensitive nature of the functions of the PCA and of the internal investigation branch, “special reasons” must mean reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular or significant weight. And, as I have already said, they must be reasons that call for or require the making of an order.
It goes without saying that circumstances that are routine, and consequences that are a normal and inevitable result of the secrecy provisions, are unlikely to give rise to “special reasons”. The submission that the PCA and the Commissioner should be accountable to the Courts (presumably by requiring disclosure of information) should not be accepted. It is clear from the legislation that that cannot be the starting point. The legislation provides otherwise. Similarly, the submission that disclosure of the material will facilitate the efficient conduct of the proceedings cannot be accepted as a relevant matter. There is nothing special or out of the ordinary in the fact that the inability to obtain the production of documents such as the contested documents will or might prejudice the efficient conduct of the litigation. Under this head the Court must also consider the possible impact of the making of an order on those involved in the matter that has been investigated, and on those who are the subject of the relevant information. It must also involve a consideration of the impact or possible impact of an order on the ability of the PCA and of the internal investigation branch to discharge their functions under the CDP Act.
I will return to the issue of special reasons shortly.
The Court must also consider what is required by the interests of justice. The power under s 48(7)(c) may fall to be exercised in a wide range of circumstances. It is not limited to production in connection with civil litigation or criminal proceedings. This further provision requires consideration of the justice of the situation, which (at least in the context of civil or criminal proceedings) invites attention to the circumstances of the parties, and to the ability of the court to render justice. The Court must be satisfied that only by the making of an order can the interests of justice adequately be served, and that necessarily implies that unless the interests of justice require the making of an order, it is not to be made.
In the present case the starting point is that the PCA and the Commissioner, through Mr Cornish, have provided all of the information in their possession to the Crown Solicitor, for the Crown Solicitor to use for the purpose of advising the defendants, but subject to the permission or authority of the PCA and of the Commissioner if information is to be divulged. As the affidavits indicate, a substantial amount of information has been divulged to the plaintiffs. Nevertheless, the defendants are in a position of definite advantage, because the Crown Solicitor can peruse material that is not available to the plaintiffs, and can recommend to the PCA and to the Commissioner that the Crown Solicitor should be permitted to use that material and to divulge it in the course of the proceedings.
The defendants have a further advantage. The defendants, like the plaintiffs, have access to the plaintiffs’ statements. They can cross-examine the plaintiffs on them. But the plaintiffs do not have access to the defendants’ statements. The defendants are not at risk of being cross-examined on their statements. Nor do the plaintiffs have access to material in the files that may be adverse to the defendants’ case, other than the material already disclosed to them.
I am prepared to draw the inference that the Crown Solicitor would aim to minimise the risk of the State having to pay damages, and of course the Crown Solicitor must act in the interests of the named defendants who are his clients. So there is no reason to doubt that the Crown Solicitor will use the contested documents to advance the defendants’ case, and adversely to the plaintiffs’ case.
Mr Walters made the point that the circumstances give rise to more than forensic disadvantage. There is an appearance of unfairness from the differential treatment of the plaintiffs and the defendants. That differential treatment arises from the decision by the PCA and Mr Cornish, and he submits that the Court should ensure that they exercise their powers even-handedly. He argues that the unequal release of information brings the administration of justice into disrepute.

I agree that the circumstances are out of the ordinary, and that there are distinctive circumstances about the case. The PCA and Mr Cornish have exercised their powers in such a way as to give the defendants a significant advantage.
I do not, however, agree that the Court should proceed on the basis that, in principle, the powers of the PCA and of the Commissioner must be exercised even-handedly. To take that approach would be to put unwarranted fetters on the power of the PCA and of the Commissioner under s 48(7). In exercising their powers, they cannot be required or expected to treat the parties equally. Their focus will be on the impact of disclosure on their discharge of their functions. Nor do I agree that the conduct of the PCA and of the Commissioner brings the administration of justice into disrepute.
It follows that I accept that there are some circumstances that can be described as special reasons. They can be said to support the making of a disclosure order. But do they require the making of a disclosure order?
There are matters that point the other way. The PCA and the Commissioner are entitled to take the view that it is appropriate to allow some of the material in their files to be used in connection with the proceedings, and to take the view that the Crown Solicitor is best placed to advise them (but not to decide) on what might or should be released to the parties. To my mind there is no obligation on the PCA or on the Commissioner to assist the plaintiffs or the defendants. But, more relevantly, there is no obligation on the PCA or on the Commissioner to exercise their powers so as to assist the efficient and just disposition of the proceedings. Nor is there any obligation on them to treat the plaintiffs and the defendants even-handedly. They are entitled to take the view that they will divulge only such information as they may think can be divulged without prejudice to their desire to keep other material secret. They were entitled to take the view that the release of what might be called background material, and material provided by the plaintiffs themselves, could not be prejudicial to their interest in the secrecy of their materials.
I respectfully disagree with the observation by the Judge below that the PCA and the Commissioner may not “pick and choose” when it comes to releasing information. The PCA and the Commissioner are entitled to make their decision about what is to be divulged, having regard to their own responsibilities whether or not that decision advantages one party or another. In saying this I assume, of course, that they exercise their powers for the purposes for which they are conferred, and not with a view to achieving some ulterior object. I also respectfully disagree with the observation by the Judge below that the PCA and the Commissioner should not be allowed to “destroy the level playing field that should exist between the parties”. To my mind, that is no concern of the PCA or of the Commissioner. It is not a basis on which the Court should order disclosure.
I add that to some extent the submissions for the plaintiffs seem to assume that at trial the Crown Solicitor will be at liberty to make whatever use the Crown Solicitor wishes of the contested documents. That assumption is not correct. Certain uses of the contested documents could have the result that counsel for the defendants would be required by the trial judge to make the relevant documents available to the plaintiffs. I proceed on the assumption that the use of the contested documents at trial will depend upon decisions that must be made by the PCA and by the Commissioner, in the light of advice from the Crown Solicitor.
As well, I repeat and emphasise that the PCA and the Commissioner are entitled to seek advice from the Crown Solicitor as to the appropriate approach to the divulging of the information in this case. One would expect that advice to be given. One would expect the Crown Solicitor to give that advice, having regard to the normal understanding that the Crown should be a model litigant.
In the end, what stands out in this case as out of the ordinary, as distinctive or particular about the case, and as carrying some weight, is the potential advantage conferred on the defendants by the decisions made so far by the PCA and by the Commissioner. The other matters or arguments invoked in favour of making an order can be put aside. I am not persuaded that the advantage requires the making of an order that the information be divulged. One cannot quantify the disadvantage to which the plaintiffs are subjected, or the potential advantage to the defendants. But it does not appear to me to be a disadvantage that requires the making of an order for disclosure, bearing in mind the countervailing factors. In civil litigation it is not uncommon for there to be an imbalance as between parties, particularly when one party has resources that are not available to the other. And, as I have said, there are reasons for not making an order.
As well, I am not persuaded that the interests of justice cannot adequately be served except by the making of an order for disclosure. Once again, I am not persuaded that the inequality of the positions of the parties calls for the making of an order. In particular I am not satisfied that there is any reason to approach the matter on the basis that, in principle, the power to order disclosure should be used to ensure that the parties are in an equal position, or will be treated equally.
In that connection, it is relevant to bear in mind that the powers of the Court under s 48(7)(c) can be invoked at any stage of the proceedings. Later decisions by the PCA or by the Commissioner as to the use of the contested documents might provide a basis for the plaintiffs to make a further application to the Court. Whether or not there will be a basis for a further application cannot be known. But it is relevant to emphasise that the power to make a disclosure order will remain available throughout the course of the proceedings.
For those reasons I am not persuaded that the Court should make an order under s 48(7)(c) requiring the disclosure of the contested documents. Nor would I make such an order under s 48(4).
Conclusion
I would allow the appeal. I would set aside the Judge’s order allowing the appeal to him and requiring disclosure of the contested documents, and the related orders made by him. I would substitute an order dismissing the appeal against the Master’s decision refusing to order production of the contested documents.
DEBELLE J: The central issue in this appeal concerns the extent to which the terms of s 48 of the Police (Complaints and Disciplinary Proceedings) Act 1985 may be relied on to prevent inspection of documents produced in the course of an investigation of complaints against police officers by the Police Complaints Authority and the Internal Investigation Branch of the South Australian Police Force.
The question has arisen in the course of an action between thirteen plaintiffs claiming damages against 25 police officers. The proceedings stem from a confrontation at the Beverley Uranium Mine near Arkaroola on 7, 8 and 9 May 2000. The plaintiffs allege that the defendant police officers engaged in an series of assaults and other tortious conduct, including wrongful arrest and unlawful imprisonment. It is convenient to refer to the parties as “plaintiffs” and “defendants”.
The State of South Australia has been joined as a defendant pursuant to s 5 of the Crown Proceedings Act 1992. Section 5 of that Act is in these terms:
(1)Subject to this Act and any other Act of the State, the Judiciary Act 1903 of the Commonwealth, and any relevant rules of court-
(a)     proceedings may be brought and conducted by or against the Crown in the same way as proceedings between subjects; and
(b)     the same substantive law is to be applied in such proceedings as in the case of proceedings between subjects.
(2)     Subject to the regulations, proceedings may be brought by or against the Crown-
(a)     in the case of the State Crown – under the name “The State of South Australia”;
(b)     in any other case – under the name in which the Crown could sue or be sued in the courts of its own jurisdiction.
The provisions of s 65 of the Police Act 1998 transfer to the State the civil liability of a police officer for acts honestly done in the course of duty. Section 65 is in these terms:
(1)A member of S.A. Police does not incur any civil liability for an honest act or omission in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this or another Act or any law.
(2)A liability that would, but for subsection (1), lie against a member of S.A. Police lies against the Crown.
It appears that the plaintiffs have added the State as a defendant because of the terms of s 65 and because they plead in para 2 (c) of the statement of claim that the State owed a duty to the plaintiffs to ensure so far as was reasonable that the 25 defendant police officers had been properly trained and instructed in respect of the particular activities in which they engaged during the events the subject of these proceedings.
Police Complaints Authority
The Police Complaints Authority (“the Authority”) is established by the Police (Complaints & Disciplinary Proceedings Act (“the Act”). Its functions include the investigation of complaints against police officers. The Authority is constituted by a legal practitioner of not less than five years standing, who is appointed by the Governor: s 5 of the Act. The person currently holding that office is Mr A D Wainwright.
It is unnecessary to note all the provisions in the Act relating to the Authority and its powers of investigation. It is sufficient for present purposes to note that, pursuant to s 22A of the Act, the Authority has power to initiate an investigation into misconduct by a police officer. If the Authority does so, it must notify the Commissioner of Police (“the Commissioner”) and, unless the Authority decides to investigate the conduct itself, the Authority refers the matter to the Commissioner for investigation: s 22A(2) and (3) and s 23 of the Act. In those circumstances, the investigation must be conducted by the Internal Investigation Branch of the South Australian Police Force. The Internal Investigation Branch is established by s 13 of the Act.
Both the Authority and the Internal Investigation Branch have quite extensive powers to assist them in the conduct of an investigation. The Internal Investigation Branch may direct a member of the police force to furnish information, produce property, a document or other record, and to answer questions relevant to the investigation: s 25(5) of the Act. A member of the police force who fails to comply with the direction may be dealt with in accordance with the Police Act for breach of discipline: s 25(8). The Authority also has wide powers when conducting investigations. The powers (and the limits upon these powers) are set out in s 28. They include a power to direct any person (including a police officer) to furnish information, produce property, a document or other record, and to answer questions and to attend before the Authority to answer questions: ss 28(6) and 28(7). A police officer who fails to comply may be dealt with under the Police Act for breach of discipline and any other person who fails to comply with such a direction is guilty of an offence: ss 28(10) and 28(11) of the Act.
Secrecy
Section 48 of the Act contains various provisions preventing the communication of information disclosed or obtained in the course of an investigation under the Act. Given its importance in this appeal, it is desirable to set s 48 out in full:
(1)     In this section—
prescribed officer means—
(a)     a person acting under the direction or authority of the Authority; or
(b)     a member of the internal investigation branch or any other member of the police force,
but does not include the Authority or the Commissioner;
relevant person means—
(a)     in relation to a person who is or has been acting under the direction or authority of the Authority—the Authority; or
(b)     in relation to a person who is or has been a member of the police force—the Commissioner; or
(c)     in any case—the Minister.
(2)     Except as required or authorised by this Act or by a relevant person, a person who is, or has been, a prescribed officer must not, either directly or indirectly, make a record of, or divulge or communicate, information acquired by reason of his or her being, or having been, a prescribed officer, being information that was disclosed or obtained under this Act.
Maximum penalty: $2 500 or imprisonment for 6 months.
(3)     Where the Commissioner furnishes to the Authority a certificate certifying that the divulging or communication of information specified in the certificate, being information that has been disclosed to the Authority by a member of the police force or obtained by the Authority from records of the police force, might—
(a)     prejudice present or future police investigations or the prosecution of legal proceedings whether in the State or elsewhere; or
(b)     constitute a breach of confidence; or
(c)     endanger a person or cause material loss or harm or unreasonable distress to a person,
then, despite any other provisions of this Act, a person who is, or has been, the Authority or a person acting under the direction or authority of the Authority must not, either directly or indirectly, divulge or communicate any part of the information except with the approval of the Commissioner or the approval of the Minister given after consultation with the Commissioner.
Maximum penalty: $2 500 or imprisonment for 6 months.
(4)     This section does not prevent a person who is or has been a prescribed officer from divulging or communicating information disclosed or obtained in the course of an investigation under this Act—
(a)     in proceedings before a court, the Tribunal or the Commissioner in respect of—
(i)      an offence; or
(ii)     a breach of discipline,
relating to a matter the subject of the investigation; or
(b)     as required in proceedings under the Royal Commissions Act 1917; or
(c)     as required by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order.
(5)     This section does not prevent a person who is or has been a prescribed officer from whom information has been sought in the course of an investigation under this Act from consulting—
(a)     a legal practitioner; or
(b)     some other person with the Minister's approval (which may be a general approval or given in a particular case),
in relation to the matter under investigation.
(6) This section does not prevent a person who is or has been a member of the police force whose conduct has been under investigation under this Act from divulging or communicating particulars of the outcome of the investigation as furnished or registered under section 36 (including any comments made by the Authority when furnishing any of those particulars).
(7)     Despite any other Act or law, a person who is or has been the Authority or the Commissioner cannot be required to divulge information disclosed or obtained under this Act in the course of an investigation except where such a requirement is made—
(a)     in proceedings before a court or the Tribunal in respect of—
(i)an offence; or
(ii)a breach of discipline,
relating to a matter the subject of the investigation; or
(b)     in proceedings under the Royal Commissions Act 1917; or
(c)     as required by order of a court, the court being satisfied that there are special reasons requiring the making of such an order and that the interests of justice cannot adequately be served except by the making of such an order.
(8)     If a person consulted under subsection (5) obtains information as a result of the consultation that the person who initiated the consultation is (apart from that subsection) prohibited from divulging or communicating, the person so consulted must not divulge or communicate that information.
Maximum penalty: $2 500 or imprisonment for 6 months.
The issues in this appeal stem from the terms of s 48(7).
The Authority Decides to Investigate
By letter dated 10 May 2000 the Authority informed the Commissioner that, pursuant to s 22A of the Act, it intended to conduct an investigation into the events which had occurred at the Beverley Uranium Mine in early May 2000. The investigation was carried out by the Authority with the assistance of the Internal Investigation Branch. Persons interviewed included police officers, Chubb security officers, protesters, representatives of the media, and others present at the protest. The persons interviewed included some of the plaintiffs. The interviews were transcribed. In addition to the transcripts, a large volume of other documents were produced in the course of the investigation, including correspondence, memoranda and file notes. The documents are held by the Authority. It is reasonable to infer from the fact that the Internal Investigation Branch assisted the Authority in its investigation that many of the transcripts of interviews are held by it. In that respect, the Commissioner also holds those documents.
The investigations were completed at the end of May 2002 and the Authority published a report. The report recommended that certain police officers be charged with offences. The plaintiffs have a copy of the report. It is a detailed report containing 147 pages. It examines at length a number of incidents in the course of the demonstration. It also examines in detail the use of a shipping container as a detention facility during the demonstration. The use of the shipping container to detain persons apprehended during the course of the demonstration is one of the issues in the trial. The report also describes events relating to the demonstration such as persons escaping from the detention facility and the release of persons detained in it. Questions relating to the property of protesters and to damage to their property are also examined. A number of the matters the subject of the report are the subject of many of the allegations in the statement of claim in this action.
Authority Hands Documents to Crown Solicitor
The Crown Solicitor is acting for the State of South Australia and for the 25 police officers in this action. After this action had been commenced, the Authority provided the Crown Solicitor with the complete files relating to the investigation. Those files contained information which had been disclosed or obtained under the Act in the course of the investigation.
By letter dated 2 February 2004 the Authority consented to the discovery and production for inspection of documents contained within the files of the Authority which
(a) had come into existence before the investigations or independently of it, or
(b) statements and transcripts of interview and information provided by the individuals who are plaintiffs in this action.
However, the Authority did not consent to the production to the plaintiffs of documents referred to in the defendants’ list of documents as documents C2 to 017. Those documents are described in these terms in an affidavit sworn by Mr Wainwright who is the Police Complaints Authority:
(a) all statements and records of interview of individual defendants which were taken by the Authority or by officers of the Internal Investigation Branch on behalf of the Authority for the purpose of the investigation including audio and electronic records of interviews,
(b) statements and records of interviews of third parties who have not become party to these proceedings, which were taken either by the Authority or the Internal Investigation Branch for the purpose of the investigation, and

(c) correspondence, memoranda, file notes and other records prepared by the Authority for the purpose of the investigations.
Exercising its powers under s 48(7) of the Act, the Authority does not consent to the production of these documents.
The plaintiffs applied to have the documents produced for inspection. The defendants opposed the application. A Master of the Court upheld the defendants’ objection to production. The plaintiffs appealed and a judge of this Court held that the documents should be produced. The defendants have appealed against that decision.
The document which the defendants seek to withhold pursuant to s 48 are disclosed as follows in the defendants’ list of documents:
correspondence, memoranda, notes of interviews, statements and various documents prepared by, on behalf of or at the direction of the Police Complaints Authority or the Police Internal Investigation Branch for the purposes of investigation into events at the Beverley Uranium Mine involving the South Australia Police in May 2000, and specifically including …
The documents are then listed. Most are statements or records of interview produced in the course of the investigation. The arguments on this appeal focussed on those statements or records of interview. Other documents provided by the Authority to the Crown Solicitor were not mentioned. They are referred to in sub-para (c) of Mr Wainwright’s affidavit quoted above. I shall return to this question.
Control of the Documents
The documents are in the possession of the Crown Solicitor. It is quite apparent that the Authority provided the documents to the Crown Solicitor to enable the Crown Solicitor to advise the defendants in these proceedings and to assist the defendants in the conduct of their defence. That fact was conceded by the Solicitor General.
Mr Walters SC, who appeared for the plaintiffs, contended that the fact that the Crown Solicitor had discovered the documents indicated that the defendants have possession of them or that they are in the power or custody of the defendant police officers. For that reason, he submitted, the provisions of s 48(7) do not apply. The submission is founded on the premise that, once the documents had been provided to the Crown Solicitor, the documents were then disclosed to defendant police officers. The reasons which follow, that premise is not valid.
The facts relating to the circumstances in which the Authority made the documents available to the Crown Solicitor are not spelled out in great detail. Two affidavits have been sworn. The first has been sworn by Mr Wainwright. The second has been sworn by Mr PN Cornish who is the Commander and officer-in-charge of the Ethical and Professional Standards Service of the South Australian Police Force. He is also the officer-in-charge of the Internal Investigation Branch. There is no evidence that the documents have been disclosed to the 25 defendant police officers. It is reasonable to infer from the terms of the affidavits sworn by Mr Wainwright and Mr Cornish they would not have intended the documents to be disclosed to 25 defendant police officers. Given the fact the Authority has investigated the conduct of those officers and recommended that some of those officers be charged with offences, it is reasonable to infer that the documents would not have been handed to any of the 25 police officers. Neither the police officers whom the Authority recommended should be prosecuted nor any of the other police officers have any entitlement to the documents nor should they be disclosed to them.
It is also reasonable to infer that, when the documents were provided to the Crown Solicitor, neither the Authority nor the Commissioner abandoned control of the documents. That is to be inferred from the fact that they purport to exercise a right to decide whether the documents should be disclosed or not. Furthermore, a person who hands documents to another does not necessarily relinquish control over the documents. For example, if the secretary of a company delivers the minute book of the company to a person outside the company, the secretary does not relinquish control of the minute book and may recall it. There will of course be occasions when a person does deliver a document to another, intending to relinquish control, for example, delivering a letter to another. But that is not this case. The Authority handed the documents to the Crown Solicitor for a specific purpose and there is nothing in that purpose which implied that the Authority was intending to relinquish control. There was nothing which would prevent the Authority from recalling all of the documents or exercising control over the documents. A further reason for inferring that they did not relinquish control is that although they consented to production of two classes of documents in the files which had come into existence before the investigation or independently of it and to the production of the statements of information provided by the persons who are plaintiffs in this action, the Authority are not willing to produce the remaining documents.
The list of documents did not state the position with complete accuracy when it said that the defendants had these documents in their possession or custody of power. They are documents in possession of the Crown Solicitor as the agent of the defendants. This is an instance of an agent who holds documents which may assist the principal but who holds those documents on terms which prevent disclosure to the principal. The principal in this case is the State and the 25 defendant police officers. The defendants do not have the documents in their physical possession, nor in their custody, and they do not have any power over the documents. The Authority retains the power or control over the documents. Nevertheless, as they are documents in possession of the agent of the defendants, they are obliged to give discovery of them.
The Documents Were Discoverable
Rule 58.01 imposes an obligation on a party to give discovery of documents “that are or have been in his possession, custody or power, relating to any matter in the action”. The content of that obligation has been spelled out in many cases. I respectfully agree with the summary of Byrne J in Roux v Australian Broadcasting Commission [1992] 2 VR 577 at 589:
The expressions “possession, custody and power” in this context have been authoritatively explained in the cases over many decades. “Possession” refers to the lawful right to possession of a document. A document is within the “power” of a party if the party has a presently enforceable right to inspect it without the need to obtain the consent of another: Lonrho Ltd v Shell Petroleum Co. Ltd. [1980] 1 WLR 627, at p 635 and Theodore v Australian Postal Commission [1988] VR 272, at p 277. A party has “custody” of a document where the document is within the corporeal possession of that party whether or not this is accompanied by a right to possession (B v B [1979] 1 All ER 801 at 806), and whether or not the party is constrained by a contract from dealing with the document Commissioner of Taxation v Australia & New Zealand Banking Group Ltd (1979) 143 CLR 499, at p 519-20.
A person has the obligation to disclose all relevant documents which are in his possession or power, even if he is not the owner or sole owner of them; and prima facie he is obliged to produce all such documents for the inspection of the other party: B v B (supra) at 806.
All documents held by a solicitor are not necessarily the property of the client or a documents which the client possesses or are within the client’s power or custody: Wentworth v De Montfort (1988) 15 NSWLR 348. Thus, relevant documents which are the property of the solicitor are not discoverable as the documents for the client: O’Shea v Wood [1891] P 286. They might have to be produced in answer to a subpoena duces tecum but they are not discoverable. However, where the solicitor receives documents which are the property of the third person for the purpose of assisting the solicitor in the conduct of particular proceedings, the documents would as a general rule be given to the solicitor as agent for his client so that, on ordinary principles of agency, the documents would be discoverable as documents in the possession, custody or power of the client. There is no reason why that proposition should be any different if the documents were provided to the solicitor to assist the client in the conduct of the proceedings but on terms that they should not be disclosed to the client. As the documents have been made available to assist the client in the conduct of the litigation, they are effectively in the custody of the client. Notwithstanding that the client is not at liberty to examine them, the solicitor is holding the documents on behalf of the client: cf. Norton & Co v Lamport Holt & Co (1886) 2 TLR 630. Furthermore, if this is not the position, it opens the rules to discovery to abuse. For these reasons the documents which the Authority provided to the Crown Solicitor are discoverable documents and were properly discovered by the Crown Solicitor.
There is another route by which to conclude that the documents are discoverable. Although not named as such, the Commissioner is effectively a defendant in this action. That is the result of the plea in paragraph 2(c) of the statement of claim. The Commissioner is the person who is ultimately responsible for the training of police officers. If he had been named as a defendant and had been held to be liable but had acted honestly in the execution of duty, the liability would fall on the State of South Australia by reason of the terms of s 65 of the Police Act. Section 14 of the Act provides that the officer in charge of the Internal Investigation Branch is entitled to report directly to the Commissioner on any matter relating to the Branch or to the performance of its functions. As the Internal Investigation Branch assisted the Authority in the conduct of this investigation, the Commissioner would be in possession of documents produced by the investigation. Had he been named as a party, the Commissioner would have been required to disclose all documents in his possession. This is a further reason why the Crown Solicitor acted properly in discovering the documents.
Is the State Bound by Section 48?
Mr Walters SC also submitted that the State of South Australia has the documents and as the State is not bound by s 48, the plaintiffs are entitled to have the documents produced to them. For the reason already expressed, the State does not have possession of the document. Furthermore, Mr Walters mis-states the question by submitting that the State is not bound by the terms of s 48. Section 48 imposes an obligation on the Authority and the Commissioner not to disclose the documents except where required by the terms of paragraphs (a), (b) and (c) of s 48(7). No obligation is imposed on the State. Instead, the obligation clearly rests on the Authority and the Commissioner. In any event, even if the documents are in the corporeal possession of the State, they remain documents subject to the control of the Authority and the Commissioner and are subject to s 48(7).
Must the Documents be Produced?
The question whether the documents must be produced for inspection turns on the terms of s 48(7). The effect of that provision is that the Authority and the Commissioner are at liberty to divulge information disclosed or obtained under the Act in the course of investigation but are not obliged to do so except in instances listed in paras (a), (b), and (c) of s 48(7). The Authority and the Commissioner have released the documents already mentioned. The question is whether the Court should make an order for production of the remaining documents pursuant to para (c).
The respondents have the burden of satisfying the Court upon two issues. The first is that there are special reasons requiring that such an order be made. The second is that the interests of justice cannot adequately be served except by making such an order. Both these tests must be satisfied. The legislative history of s 48(7) confirms that conclusion. Until 2000, a person seeking to obtain information disclosed or obtained under the Act in the course of an investigation had to satisfy the Court only that an order should be made in the interests of justice. By s 11 of the Police (Complaints and Disciplinary) (Miscellaneous) Amendment Act 2000 Parliament amended s 48(7) to provide a more stringent test. It is apparent from the second reading speech that the test of special reasons was added because Parliament believed that orders were being made too frequently under s 48(7)(c): see also R v Ferri (2002) 220 LSJS 155 at [13]. Not only did Parliament add the test of special reasons but it rephrased the test as to the interests of justice. Instead of a test which permitted a court to grant access “in the interests of justice”, the court must be satisfied that the interests of justice cannot adequately be served unless the order is made. The two tests as to the interests of justice are different. Given that the interests of justice is a wide expression, there might not be a material difference but the difference must be noted. The matter was not argued and, for the reasons which follow, it is unnecessary to consider the issue. I do not therefore express a concluded view. The issue with this appeal can be resolved by reference to the requirements of special reasons.
The primary meaning of “special” is “of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality or degree”: Oxford English Dictionary. The expression “special reasons” takes its colour and meaning from its context: Goldsmith v Newman (1992) 59 SASR 404 at 409 per King CJ. Notwithstanding that proposition, it is possible to make some general observations as to the meaning and effect of the expression. I respectfully agree with French J in Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at [18] when he said:
The word “special” conditioning “reasons” or “circumstances” guards the entrance to the exercise of many different statutory discretions. It is generally futile to search for its meaning in terms of other words. It is in essence instrumental, a direction to the decision-maker that the discretion it constrains is not lightly to be enlivened. A Full Court has spoken of it as having content which is “…sufficiently understood not to require judicial gloss”: Beadle v Director-General of Social Security (1985) 60 ALR 225 at 228. If helpful to speak in terms of its meaning almost all of it comes from context. …It is an elastic instruction suitable for application across a range of situations: Jess v Scott (1986) 12 FCR 187; 70ALR 185. This is just another way of pointing to its instrumental character. That application is not to be confined by precise limits or rules: Beadle at 228. Circumstances or reasons will not necessarily fall outside the designation of “special” because they fall within a class which is widely defined or because they are circumstances or reasons which can be foreseen before they arise: Hutchins; Jarlas Pty Ltd v Commissioner of Taxation (Cth) (1987) 14 FCR 510 at 527; 74 ALR 455 at 473. The core of the requirement for “special circumstances” or “special reasons” is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course: Minister for Community Services and Health v Chee Keong Thoo (1988) 8 AAR 245 at 261-252; 78 ALR 307 at 324 (Burchett J). But that does not require that the case be extremely unusual, uncommon or exceptional: Secretary, Department of Social Security v Hodgson (1992) 37 FCR 32; 108 ALR 322.
To like effect are the observations of Olsson J in R v Ferri at [15]. The additional requirement of special reasons, therefore, means that there must be some factor over and above the interests of justice which require disclosure. It means some special feature of the circumstances which provides a reason, not usually present, for requiring disclosure: cf. Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 and 225 per Wilcox J.
The plaintiffs have failed to demonstrate that special reasons exist for making an order for disclosure. At best, their submission is that the interests of justice require that the documents be disclosed. Assuming that to be so, that does not amount to special reasons.
The plaintiffs point to the fact that, in the course of the investigation, the Authority obtained the statements of the plaintiffs and of the defendants so that the disclosure of those documents to the defendants gives the defendants a forensic advantage over the plaintiffs. Although the plaintiffs have had copies of their statements provided to them, the defendants retained copies of those statements. The plaintiffs say that, unless they also have the statements of the defendants which the Authority has provided to the Crown Solicitor, the plaintiffs are at a distinct forensic disadvantage.
It is not unusual for one party but not another to litigation to have statements of particular witnesses. Not infrequently, an insurer of a party to litigation might at some early stage have obtained statements of witnesses intending to use them if litigation should ensue. That might provide a forensic advantage to the insured but it does not require that these statements be disclosed to the other party for the action: North Australian Territory Co v Goldsborough, Mort & Co [1893] 2 Ch 381; Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63. The position is a fortiori with respect to statements provided by the Authority to the Crown Solicitor. No party to litigation is obliged to produce to his opponent statements of witnesses. The majority of the documents are statements of the witnesses.
The fact that there are no special reasons which require the production of the report is emphasised by the fact that the plaintiffs have a copy of the report of the Authority of its investigation and to a large number of other discovered documents which include photographs of the shipping container used as the detention facility, a number of statements of police officers other than the defendants, more than 20 reports of police officers of incidents during the protest, a log book of Chubb Security, and a timeline based on videotapes of the incidents.
The respondents submitted that the Authority had acted unfairly in making its documents available to the Crown Solicitor and in denying them to the plaintiffs. It should not be at liberty to pick and choose, they said, to whom the documents become available. This resulted, they said, in an unequal playing field, giving the defendants a forensic advantage. The submission overlooks the fact that the Commissioner also had the documents and the fact that the plea in paragraph 2(c) of the statement of claim effectively makes the Commissioner a defendant in this action. As a defendant, the Commissioner would have had to disclose the fact that he had had these documents in his possession. As a general rule, the Authority should not favour one party to a suit by making documents available to it but not to the other party. If a party seeks documents held by the Authority, it should make an application for discovery by a person not a party to the action. However, the Authority acted properly on this occasion. It was not picking and choosing but, instead, was recognising the reality that the Commissioner also had the documents.
The Limits of Section 48(7)
Section 48(7) does not protect from production all documents of the Authority or the Commissioner of Police. It enables the Authority or the Commissioner to withhold production only of information disclosed or obtained under the Act in the course of an investigation. In addition to the statements of witnesses, the documents which have been discovered include correspondence between the Authority and others, between the Commissioner and others, internal memoranda of the Internal Investigation Branch, briefing notes and other documents of the Authority. Some of those documents might fall into the category of documents containing information disclosed or obtained under the Act in the course of the investigation. Others may not but might be privileged from production on some other ground. The issue of the discovery of these documents was not expressly dealt with in the course of argument. As mentioned earlier, the focus of the submissions of the plaintiffs was upon the statements of witnesses obtained in the course of the Authority’s investigation. If the plaintiffs seek to pursue that issue, the question whether those other documents should be produced for inspection should be the subject of a fresh application before the Master.
Conclusion

For these reasons, I would allow the appeal and restore the order of the Master.
ANDERSON J: In this matter I have had the advantage of reading in draft the reasons of Doyle CJ and Debelle J. Both their Honours refer to the general background relating to this matter, namely, that it involves the conduct of various members of the South Australian Police Department in their handling of demonstrators at a uranium mine in northern South Australia in early May 2000.
The nature of the allegations made against members of the police force in the statement of claim are very serious and are pleaded in detail. The allegations include physical acts of violence, oral threats, the detention of the protestors in a shipping container, deprivation of food and water and subjecting the protestors to various acts of humiliation and other indignities.
No doubt when these serious allegations were made, and before the statement of claim was filed, the Commissioner of Police decided to conduct an investigation. The end result of the investigation and of course the end result of the subject action, are very much a matter of public interest. Whilst I agree with much of the reasoning contained in the draft judgments of their Honours, I find myself in a position where I am able to decide the appeal on the information which is presently before the court. In my opinion the information is insufficient to enable judgments to be made on some of the very important issues which are clouded by the present state of discovery of documents and an associated claim for immunity from production of documents pursuant to the provision of the Police (Complaints and Disciplinary Proceedings) Act (1985) SA ("the CDP Act")
The Chief Justice in his reasons describes the affidavits filed by the Police Complaints Authority ("the Authority") and by a Mr Cornish on behalf of the Commissioner of Police as "surprisingly sketchy". The Chief Justice is prepared to infer that when the documents were provided to the Crown Solicitor there was no intention by those providing the documents to concede that the contents of the document should be disclosed. The Chief Justice says:
One might have expected them to make this clear when forwarding the files to the Crown Solicitor, and to have said so in their affidavits. But despite the sketchy nature of the affidavits I am satisfied that that must be the situation.
I would require further information to decide the first matter which arises, namely, whether a prohibition against disclosure applies because of either s 48(2) or s 48(7) of the CDP Act. The Crown representing the State of South Australia is a model litigant. In this role as the model litigant and especially having regard to the public interest involved in the serious allegations made in the statement of claim I believe it is necessary for the affidavits to clearly set out how it was, why, and in what circumstances the documents were provided by the Authority and the Police Commissioner to the Crown Solicitor. That is because the prohibition against disclosure is part of a scheme containing secrecy provisions which schemes, by their very nature, require careful monitoring.
Debelle J points out that the description of the documents given is not sufficient to determine whether the documents fall into a category of documents which contain information which has been ascertained in the course of the various investigations or whether there is a privilege relating to those documents on other grounds. I agree with this observation and I regard it as a further cause for concern.
The documents, in the absence of any explanation, could have been handed over to the Crown for safekeeping, for legal advice, or for discovery purposes or perhaps for a purpose unknown at the present time. It seems to me that the discovery process in this matter needs revisiting because it is, on the face of it, insufficient. One has to speculate as to why the documents were provided and whereas their Honours are prepared to make inferences in the circumstances of this case, I am not prepared to do so.
In relation to the second issue as to whether there are special reasons pursuant to s 48(4)(c) or s 48(7)(c) of the CDP Act, I am also of the view at the present time that the issue may be clarified by a proper explanation for the provision of the documents and whether there is to be any distinction as between different types of documents. As at present advised, like the judge appealed from, if it came down to the second issue of whether there are special reasons I would decide it in favour of the plaintiffs.
Doyle CJ deals with the topic of special reasons and says that:
Special reasons must mean reasons that are out of the ordinary, that relate to something that is distinct or particular about the case, and that carry particular or significant weight.
His Honour also said:
Circumstances which are routine and consequences that are a normal and inevitable result of the secrecy provisions are unlikely to give rise to special reasons.
I respectfully agree with those statements.
I think that there may be special reasons in this matter because the secrecy provisions are potentially being used in a way which impedes the proper discovery process. I refer in particular to those documents referred to in sub-para (c) of the affidavit filed by the Authority, namely "correspondence, memoranda, filenotes and other records prepared by the Authority for the purpose of the investigation". This is not a proper description by way of discovery.
In a matter of such public importance and having regard to the nature of the allegations, the scope for relevance is wide. Therefore every assistance must be given to the plaintiffs by an explanation of the whole process in which the documents were handed over to the Crown Solicitor, in a transparent way so that justice can be seen to be done. I consider that when combined with the rather unusual and distinct features of this case the defendants do have a significant advantage in their pre-trial preparation. That is why I consider more effort should be directed to the discovery process.
That is not to say that all the documents discovered will necessarily have to be produced but at least it gives the plaintiffs the opportunity of having a proper description and a proper basis in the affidavits of both the Police Complaints Authority and the Commissioner of Police which does not exist at the present time.
For these reasons I respectfully disagree with the other members of the court. I am not prepared at this stage to either allow or disallow the appeal because I believe that the matter needs further investigation at the interlocutory level. I would therefore refer the matter back to the Master with directions that further affidavits should be filed to remove the uncertainty at the present time which surrounds the provision of the documents to the Crown Solicitor.