Wilson v State of NSW [2008] NSWDC 130

In this matter Greg Walsh acted for David Wilson, the plaintiff in an action against the State of New South Wales.

A subpoena had been issued seeking the production of documents from the Commissioner of Police and objection was taken to the production of those documents.

Mr Wilson had sued the State of New South Wales for wrongful acts alleged against certain Sheriff officers in its service. The plaintiff claimed damages for trespass, assault, wrongful arrest, false imprisonment, malicious prosecution, trespass to goods and detinue.

Complaints were made as to the conduct of the officers involved which became the subject of various investigations and other inquiries by a number of authorities including the New South Wales Ombudsman of a disciplinary nature. The subpoena sought the production of documents brought into existence as a result of these complaints and their consequences, which the defendant resisted relying on s.170 of the Police Act,1990; s.56 of the Civil Procedure Act, 2005 and the Uniform Civil Procedure Rules, 2005.

On 31 January 2008, Walmsley J ordered the defendant give discovery of certain disputed categories of arising out of the complaints, but left open for subsequent consideration various issues surrounding production and inspection of the documents. The defendant prepared a list of documents in which it discovered a significant number of documents. No objection was made to a number of those documents.

Johnstone DCJ referred to the observations of Hunt J in R v Saleam (1989) 16 NSWLR 14. His Honour observed at [162B]:

“The circumstances that a document is inadmissible in evidence in any particular proceedings, does not mean that a party to those proceedings may not have access to it for legitimate forensic purposes. In McAuliffe v McAuliffe (1973) 4 ACTR 9 at 12-13, Blackburn J refused access to documents produced on subpoena on the basis that they were not by themselves admissible in evidence.

That decision was expressly held by the Court of Appeal to be unsound and not to be followed: Waind & Hill (381). Subject to the existence of a legitimate forensic purpose, a party is entitled to see documents produced on subpoena, not only to see whether they can themselves prove relevant facts but also to see whether they disclose information which may be established in some other admissible form.”

The State asserted the principle in R v Saleam did not apply to s.170 of the Police Act. It was submitted that s.170 should not be read so restrictively in the environment of civil litigation post the Civil Procedure Act, 2005. Johnstone DCJ observed:

“That was a bold submission and not one that espoused any principle of statutory construction of which I am aware.”

The next contention on behalf of the defendant was that the word ‘privilege’, which appears in the heading to s.170, must be given some work to do. His Honour rejected this contention. See s.35(4) of the Interpretation Act.

The defendant then contended that the disputed category 2 documents were not relevant to any civil proceedings His Honour said that this was also a bold submission.

Next the defendant contended that the plaintiff had not established a legitimate forensic purpose. His Honour found that it was probable that the documents will reveal additional facts not in possession of the plaintiff that will assist in the prosecution of his case. Further, that the documents will inevitably give rise to avenues for further investigation and the identification of additional potential witnesses. Further, they will in all likelihood assist the plaintiff in the cross-examination of any defence witnesses. See Street v Luna Park Sydney Pty Limited [2006] NSWSC 95 at [11]; Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 11; Esso Australia Resources Limited v Federal Mutual General Association Limited v Waind and Hill (1978) 1 NSWLR 372 at 378D-E, 383 E-F and 385F.

Finally the defendant contended that the Court should refuse the inspection as to do so would run contrary to the overriding purpose enunciated in s.56 of the Civil Procedure Act 2005, to the effect that the procedures of the Court should be conducted so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

The defendant relied upon the observations of the Chief Justice in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [28]-[29]. His Honour noted that the remarks of the Chief Justice were not in relation to s.58 of the Act and that the Court must act in accordance with the dictates of justice. Those dictates not only require him to have regard to the object of the just determination of the proceedings (s57(1)), but to enable him to have regard, amongst other things, to the nature of the proceedings involved and the degree of difficulty or complexity to which the issues give rise (s58(2)(b)(i)), and to the degree of injustice that would be suffered by the respective parties as a consequence of any order that he may make (s58(2)(b)(vi)).

His Honour made the orders sought by the plaintiff in the motion.