White v State of South Australia - [2006] SASC 190

SUPREME COURT OF SOUTH AUSTRALIA
(Miscellaneous Appeal)
WHITE & ORS v STATE OF SOUTH AUSTRALIA & ORS
[2006] SASC 190
Judgment of The Honourable Justice Perry
30 June 2006
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION - GROUNDS FOR RESISTING PRODUCTION - OTHER GROUNDS
The plaintiffs appealed against the dismissal by a Master of their application that the defendants produce certain documents which the defendants had discovered – the documents related to an investigation by the Police Complaints Authority into the conduct of police officers, who were defendants to the action, during the course of a protest by the plaintiffs and others at the Beverley uranium mine site near Arkaroola in May 2000 – the Master held that secrecy provisions in the Police (Complaints and Disciplinary Proceedings) Act 1985 (“the Act”) applied and the defendants could not be ordered to produce the documents – held that none of the relevant provisions of the Act were of application and the documents should be produced for inspection – appeal allowed.
Crown Proceedings Act 1992 s 5; Police Act 1998 s 75; Police (Complaints and Disciplinary Proceedings) Act 1985 s 23, s 25, s 36 and s 48, referred to.

WHITE & ORS v STATE OF SOUTH AUSTRALIA & ORS
[2006] SASC 190
Miscellaneous appeal

PERRY J. This is an appeal against the dismissal by a Master of the plaintiffs’ application for an order that the defendants produce certain documents which they had discovered.
The action was instituted by a summons and statement of claim filed on 2 May 2003. There are 13 plaintiffs. They seek damages against the first defendant, the State of South Australia, and 25 other defendants, all of whom were police officers. I will describe them as the defendant police officers.
The claims arise out of a confrontation which occurred at the Beverley uranium mine site near Arkaroola in the north of the State in May 2000. The plaintiffs allege that the defendant police officers engaged in a series of assaults and other tortious conduct, including wrongful arrest and false imprisonment against the plaintiffs and others who were engaged in a peaceful protest at the site.
The State of South Australia is sued pursuant to s 5 of the Crown Proceedings Act 1992. Pursuant to s 65 of the Police Act 1998, civil liability which otherwise might have arisen with respect to any honest act or omission on the part of the defendant police officers is transferred to the Crown.
Within a day or two of the confrontation, the Police Complaints Authority (“PCA”) initiated investigations into the incident which culminated in the publication by it of a report two years later.
The conduct which was the subject of the PCA’s investigation substantially encompasses the acts of the defendant police officer the subject of the proceedings.
After the proceedings were commenced, the PCA and the Commissioner of Police (“the Commissioner”) provided their complete files to the Crown Solicitor for the State of South Australia, who is the solicitor on the record for all of the defendants.
The files included statements which had been given by the plaintiffs and witnesses for the plaintiffs, and also statements given by the defendant police officers and other witnesses who were questioned either by the PCA or by the police Internal Investigation Branch (“IIB”) which was working in conjunction with the PCA.
The office of Police Complaints Authority is constituted by the Police (Complaints and Disciplinary Proceedings) Act 1985 (“the PCDP Act”). The office is and was at the relevant time held by Anthony David Wainwright.
In an affidavit filed on 30 January 2006, Mr Wainwright confirmed that he had conducted an investigation into the events in question, in the course of which approximately 119 individuals were interviewed by members of the IIB on behalf of the PCA. He said that “those interviewed included police officers, Chubb security officers, protesters, media personnel and other individuals who were present at the mine protest”.
In his affidavit, Mr Wainwright claimed that the files of the PCA handed to the Crown Solicitor’s Office attracted the cover of the secrecy provisions contained in s 48 of the PCDP Act. I will in due course deal with those provisions.
In the affidavit, he went on to say:
8.I 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.
9.I 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.
Insofar as Mr Wainwright refers to documents C2 – O17 in the defendants’ List of Documents, they are the documents the subject of the application for production.
A separate affidavit was filed by Phillip Neil Cornish, the Commander and Officer in Charge of the Ethical and Professional Standards Service of the South Australia Police. The IIB comes under the control of the Ethical and Professional Standards Service, and he is accordingly the Officer in Charge of the IIB and has overall responsibility for it.
In his affidavit Commander Cornish confirmed the information given in Mr Wainwright’s affidavit insofar as it concerned the activities of the IIB, and that the IIB’s investigations had been conducted on behalf of the PCA.
He further confirmed that the complete files of the IIB in relation to the investigation were provided to the Crown Solicitor’s Office at the commencement of the proceedings. He stated further that he did not give his consent to the production to the plaintiffs of the documents referred to in the defendants’ List of Documents as C2 – O17. He confirmed the description of those documents as given in the affidavit of Mr Wainwright.
Effectively the position was reached in the process of discovery by the defendants that the only documents from the files of the PCA or the Commissioner which were produced to the plaintiffs were documents which had come into existence prior to or independently of the investigations, and the statements and transcripts of interview and information provided by the plaintiffs themselves. Production was resisted of all other documents in the files on the basis that they were within the secrecy provisions contained in s 48 of the PCDP Act, and no authorisation had been given for their disclosure to the plaintiffs by either the PCA or the Commissioner.
The legislation
Central to resolution of the issues raised in the case is a consideration of the relevant provisions to be found in s 48 of the PCDP Act. They are:
Secrecy
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)…
(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)     …
(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 of 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 Act1917; 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)     …
When subparagraph (b) of the definition of “prescribed officer” refers to “any other member of the police force”, that expression would include all of the defendant police officers.
The definition of “relevant person” in the context of this case applies to both the PCA and the Commissioner.
Section 48(2) is of potential application to the defendant police officers, in that once their statements were released to the Crown Solicitor, the statements having been acquired by the PCA from the defendant police officers arguably by reason of the fact that they were police officers, the information comprised by the statements must not, either directly or indirectly (for example through their agent the Crown Solicitor), be divulged or communicated.
Section 48(4)(c) potentially provides an exception, in that an order of a court may be made overriding the provisions of s 48(2) if the court was to be 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”.
On the face of it, s 48(7) is not applicable, in that neither the PCA nor the Commissioner are parties to the action. It follows that no question arises of them being required to divulge information by reason of the production of the material in question.
As for the relationship between the PCA and the IIB with respect to the investigation by the PCA into a matter raised by complaint, the provisions of s 23 of the PCDP are relevant.
Under s 23(1), the PCA may determine that a complaint should be investigated by him or her. Once such a determination has been made, under s 23(3), the PCA:
… may, in addition, make one or more of the following determinations:
(a)a determination that the matter or part of the matter concerned should be investigated or further investigated by the internal investigation branch in conjunction with the investigation to be carried out by the Authority;
(b)…
Although it does not appear that there is any direct evidence of such a determination having been made, the case appears to have been argued on the footing that the IIB investigation, more particularly its conduct in obtaining statements from the defendant police officers and in obtaining other information to do with the investigation, were part of an investigation or further investigation by the IIB conducted pursuant to s 23(3) in conjunction with the PCA’s investigation.
In aid of the IIB’s powers to investigate a matter in conjunction with the PCA, powers are conferred upon the IIB by other provisions in the PCDP Act, for example, by s 25(5) which provides:
(5)A member of the internal investigation branch may, for the purposes of the investigation, direct a member of the police force to furnish information, produce property, a document or other record or answer a question, being information, property, document or record or a question that is relevant to the investigation.
A failure by a member of the police force to whom a direction is made under subsection (5) constitutes a breach of discipline which may be dealt with under the Police Act.
Similar powers are vested in the PCA itself to require persons to furnish information relevant to an investigation.
Section 36 of the PCDP Act contains provisions which oblige the PCA, inter alia, to furnish to any complainant “particulars of all assessments and recommendations” made by the PCA in relation to a matter the subject of investigation, subject to certain qualifications not relevant for present purposes.
As the Master observed in his reasons, the provision of information to the complainant under s 36 of the Act ensures that a complainant “is aware of the effective outcome of the complaint and inquiry and whether or not any action is being taken in respect of the police officers against whom the complaint was made”.
The Master’s reasons for decision
The Master considered and rejected three arguments put forward by the appellant.
The first argument was that much of the information contained in the documents, production of which was resisted by the respondent, was not “… information that was disclosed or obtained under this Act” within the meaning of s 48(2) of the Act.
The appellant’s argument was, for example, that the defendant police officers statements “were no more than a record of the information that they had acquired from being present at the events in May 2000”.
The Master was correct in rejecting this argument, for at least two reasons.
One reason is that presumably all, or at least some, of the statements were obtained by the IIB as part of its investigation being carried out in conjunction with the investigation being carried out by the Authority, and in that sense the statements constituted information “disclosed or obtained under this Act”.
The second reason is that once the information was put into the hands of the PCA, it was disclosed or obtained by the PCA pursuant to its powers under the PCDP Act.
The second argument advanced by the appellants was that the relevant provisions of s 48 of the PCDP Act did not apply as the first defendant, the State of South Australia, was neither a prescribed officer as defined in s 48(1), nor was it the Authority or the Commissioner. On this argument, the defendant the State of South Australia was not subject to the prohibition in s 48(2), and could not rely on the immunity contained in s 48(7).
In dealing with that argument, the Master referred to s 6 of the Crown Proceedings Act 1992 which is as follows:
6.(1) This Act does not affect immunity from, or limitation on, liability that the Crown enjoys by statute.
(2)This Act does not make binding on the Crown any Act or statutory provision that would not, apart from this Act, be binding on the Crown.
In rejecting this argument, the Master said that the appellants’ submission:
… overlooks the affidavit evidence of Mr Wainwright, the Authority, and Commander Cornish that they authorized the provision of the relevant files to the Crown and that they do not authorize their disclosure to the plaintiffs. They retain effective control of the documents and remain the only persons who can waive the immunity under Section 48. Having regard to the provisions of Section 6 of the Crown Proceedings Act and the limited authority given by the Authority and the Commissioner, The State of South Australia attracts the immunity provisions that apply in paragraph 48(7) of the PCDP Act. Absent a further authority from the PCA or the Commissioner, it cannot be required to divulge the information disclosed or obtained under the Act (provided to it by the authority of Mr Wainwright and Commander Cornish) save in the circumstances and manner provided in the PCDP Act. I therefore reject the plaintiffs’ argument for disclosure on that ground.
For reasons which I will come to, in my view, the Master erred in rejecting this argument.
The third argument advanced by the appellants before the Master was that disclosure should be ordered by the court pursuant to the provisions of s 48(7)(c). I will repeat the relevant part of that section:
… 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)     …
(b)     …
(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.
In dealing with this argument, the Master referred to a number of decisions in which the words “special reasons” have been judicially considered.
In essence, the appellants’ argument was that the respondents had received the documentation from the hands of the PCA and the Commissioner without the consent or authority of the appellants, and apparently without the consent or authority of any of the other persons who had provided statements. Furthermore, the PCA and the Commissioner had declined to authorise disclosure to the appellants’ advisers.
The argument was that this led to a situation in which there was no level playing field as between the parties, and that this produced a forensic advantage to the respondents which, in turn, resulted in substantial unfairness which ought to be remedied by an order under s 48(7)(c).
In rejecting the appellants’ arguments, the Master referred to the respondents’ arguments, which included the submission that the defendant police officers and witnesses were entitled to expect that the information furnished by them would be treated “with a degree of confidence and used only for the purposes of the inquiry and not be available to be used for collateral purposes and other than special circumstances”.[1] The respondents contended that the expressions “special reasons” and “the interests of justice cannot adequately be served” meant that the appellants would have to meet a “high threshold in persuading the court to make an order under s 48(7)(c)”.
[1] Reasons of Judge Withers at par [39].

As to these contentions, the conclusion reached by the Master finds expression in the following passage in his reasons:
[41]The plaintiffs in their submissions have not pointed to any circumstance other than the provision of documents to the Crown that is said to amount to special reasons. Nor have the plaintiffs demonstrated to my mind that the interests of justice cannot adequately be served unless there be an order that the documentary material be produced. The relevant material represents the outcome of PCA investigations into complaints about police conduct at the event out of which these proceedings arose. The material was gathered by an independent authority with special investigative powers and not in contemplation of these proceedings and was used to provide a report on the events in accordance with the PCDP Act.
[42]In my view particularly having regard to the provisions in the PCDP Act that require persons and police officers to provide information and make statements notwithstanding that the same may be adverse to their interests, to the important nature of the mantle of secrecy of Section 48 of the Act, and to the purpose of the Act to promote the integrity of the police and confidence of the public, that mantle of secrecy should not lightly be lifted.
[43]I am not satisfied that on the material provided there is evidence of special reasons that demonstrate that the interests of justice cannot adequately be served unless an order is made under Section 48(7)(c).
The arguments on appeal
On the hearing of the appeal, the appellants advanced an argument under s 48(2) in slightly different terms than that which was advanced before the Master. The appellants argued that s 48(2) is not of application because the State of South Australia is the party in possession of the relevant documents, and the State of South Australia is not a “prescribed officer” within the meaning of s 48(2).
In my view, that argument is sound. If only the defendant police officers had been sued, the Crown Solicitor, as their agent, would no doubt be caught by the provisions of s 48(2).
Furthermore, if the State of South Australia was sued only by reason of the transfer of civil liability to it under s 65 of the Police Act, it may be that s 48(2) would apply to it.
But it is important to note that the State of South Australia is also sued in its own right, in that the amended statement of claim alleges that the State of South Australia was in breach of a duty owed to the plaintiffs to ensure that the defendant police officers were properly trained and instructed in the various respects set out in par (2)(c) of the amended statement of claim.
I have already indicated that in my view the Master erred in rejecting the second submission put forward by the appellants. They have repeated that argument on appeal, and in my view, the appeal should be upheld on that ground as well.
In reaching that view, I respectfully disagree with the observation by the Master that the PCA and Commander Cornish retained “… effective control of the documents and remain the only persons who can waive the immunity under s 48”.
Once the documents were handed over to the Crown Solicitor as the solicitor both for the State of South Australia and for the defendant police officers, neither the PCA nor the Commissioner were exclusively in possession of the documents.
Insofar as the Crown Solicitor had possession of the documents in his capacity as solicitor for the State of South Australia, s 48 ceased to be of application to the documents. Neither the PCA nor the Commissioner are able to hand over documents in such circumstances but purport to retain effective control over them.
There is nothing in s 48 which could support the view that the PCA or the Commissioner retained control in such circumstances.
Section 48(7) does not give any buoyancy to any such contention. It simply provides that neither the PCA nor the Commissioner can be required “to divulge information disclosed or obtained under this Act in the course of an investigation”. It has no application to other persons to whom the PCA or the Commissioner have divulged information.
For the reasons already given, s 48(2) is not of application to the documents insofar as they are in the hands of the Crown Solicitor as solicitor for the State of South Australia.
Having regard to the conclusion which I have reached as to the two arguments to which I have so far referred, it is strictly unnecessary to address the question whether the circumstances were such as to entitle the appellants to an order in their favour under s 48(7)(c).
Of course, the question only arises if I am wrong in my conclusion that s 48(7) is not of application to the Crown Solicitor or the State of South Australia. If that conclusion is wrong, it is necessary to have regard to the discretion conferred by s 48(7).
In those circumstances, it is sufficient to indicate that, in my view, the unusual circumstances of the case did provide a proper basis for the exercise of the discretion under s 48(7)(c) in favour of production of the documents to the appellants.
I accept that there is a high threshold to be met in satisfying the requirements of the subsection. However, in my view, there were strong reasons why it was in the interests of justice in this case to make an order under s 48(7)(c).
In 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.
In 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.
Conclusion
For these reasons, I would allow the appeal, quash the order under appeal and substitute an order that the defendants produce to the plaintiffs documents C2 – O17 as specified in the defendants List of Documents filed on 10 February 2004. That order is subject to an exception with respect to any documents which may be privileged from production on the ground of legal professional privilege.
I would refer any argument which may arise as to the application of legal professional privilege to any of the documents for further consideration by the Master.