Romani v State of New South Wales

1. [1]

   The State of New South Wales (the “State”) seeks orders setting aside most of two Notices to Produce filed by the plaintiffs and for the Court to authorise a re-draft of paragraph 13, being the only paragraph that seeks identifiable documents.

2. [2]

   On 29 July 2022, after hearing from the parties, I made orders setting aside all of the Notices, (which were in identical terms), except paragraph 13. This judgment includes my reasons for making those orders.

3. [3]

   On 11 August 2022 I heard further from the parties regarding the wording of paragraph 13 and this led to some further orders set out in par 38 of this judgment. My reasons for making those additional orders are set out at pars [16], [17], [35] and [36] of this judgment.

Background

1. [4]

   The plaintiffs prefer to be called “Sanchia” and “Maia” and so I will adopt that approach in this judgment. Sanchia and Maia are occupants of property at Warrazambil Creek. They filed a Summons on 17 November 2021 asserting a claim in “Trespass” and “Personal Injury - Other” against three named defendants who are police officers. Sanchia and Maia assert that on 24 August 2021, two of the named uniformed officers, at the request of the third police officer, (then the Commissioner of Police), accessed their property by jumping or climbing over a locked gate. They then questioned and frightened Maia, and, it is alleged, refused to leave when asked and threatened to return.

2. [5]

   Sanchia and Maia both assert that this caused serious anxiety and distress to them and was a gross invasion of privacy. They also assert that complaints about the incident were inadequately dealt with by NSW Police.

3. [6]

   The State, (substituted as defendant by orders of Ierace J on 28 March 2022), asserts in its Defence, that the officers were acting in good faith in accordance with s 6 of the Police Act 1990 (NSW) and so there is no liability to the plaintiffs. The State also denies that any personal injury was suffered.

Notices to produce

1. [7]

   On 29 April 2022, Sanchia, on behalf of herself and Maia, served two Notices to Produce (‘the Notices’), one for inspection of documents under r 21.10 and the other to “produce documents to the Court” under r 34.1 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).

2. [8]

   Both Notices were dated 19 April 2022 and were in these terms:

3. [9]

   On 14 June 2022 the State filed a Notice of Motion seeking orders setting aside all but paragraph 13 of the Notices and proposing an amendment to paragraph 13 of the Notices as follows:

4. [10]

   The State indicated in an affidavit of Ms Amanda Kmetyk, solicitor, dated 14 June 2022 that it is willing and able to produce documents responsive to the proposed amended paragraph 13 on the basis that the Court formally authorises redaction of the documents to remove irrelevant material.

Procedure adopted at the hearing on 29 July 2022 and 11 August 2022 for production of documents to the Court

1. [11]

   Counsel for the State, Mr Searson, produced to the Court the documents he was instructed responded to the State’s proposed redraft of paragraph 13 of the Notices. The documents comprised:

2. [12]

   Those documents were produced in both redacted and unredacted form so that the Court could satisfy itself that the redacted version comprised the totality of relevant responsive material and that material only.

3. [13]

   The documents produced did not include any material dated after 24 August 2021 and so included nothing regarding the complaint made by the plaintiffs about the police attendance, nor the investigation of that complaint, although it is common ground that a complaint was made and an investigation did occur.

4. [14]

   The photocopy of pages from the diaries of the two attending police officers bore no entry at all regarding the incident in question, other than the time the officers’ shift commenced and ended.

5. [15]

   Orders were made regarding the Notice including the time for copies of the redacted documents to be provided to the plaintiffs (who appeared remotely by AVL and so could not be handed the documents). Submissions were made about costs. Case management orders were made for the filing and service of evidentiary statements.

6. [16]

   Whilst writing the judgment after 29 July 2022 I became aware that the paragraph 13 redraft proposed by the defendant was more narrow than that proposed by the plaintiffs and so the matter was listed for further oral submissions on 11 August 2022.

7. [17]

   On 11 August 2022, the Court proposed a redraft of paragraph 13 of the Notice not confined to documents created between 20 and 24 August 2021. Mr Searson indicated that there would be a statutory protection or privilege from producing any investigation documents (s 170 of the Police Act). The Court indicated that was a separate issue and would need to be the subject of affidavit evidence at the time of production of documents responsive to the redrafted paragraph 13. Mr Searson indicated that he did not wish to be heard against that proposition.

Legal Principles and Relevant Rules

1. [18]

   As Notices were issued under both rr 21.10 and 34.1, I will address their different functions.

2. [19]

   Part 21 of the UCPR deals with discovery, inspection and notice to produce documents. Rules 21.9, 21.10 and 21.11 provide:

3. [20]

   In contrast, a notice issued under r 34.1 of the UCPR is more akin to a subpoena, requiring as it does, production of documents to the Court:

4. [21]

   When asked by the Court as to why two Notices were issued seeking the same documents, Sanchia said it was because the first Notice was not answered. I do not accept that is correct given both Notices bear the same date and were served on the same date. More likely, Sanchia acting without legal assistance, was not sure which Rule was the appropriate one to pursue.

5. [22]

   In Norris v Kandiah [2007] NSWSC 1296, Brereton J (as he then was) pointed out the difference:

6. [23]

   The ambit for production under r 21.10 is considerably more narrow: see Patonga Beach Holdings v Lyons [2009] NSWSC 869 at [11] and [12] per Barrett J:

7. [24]

   As determined in Portal Software v Bodsworth [2005] NSWSC 1115, the rules applicable to subpoenas are applicable to notices to produce to court under rule 34.1. The process entails three steps; first, production to the court of the documents described, second, inspection of the documents produced and third, consideration as to whether the documents can be used in the proceedings.

8. [25]

   There is an onus on the party issuing the notice to demonstrate its legitimacy and that it seeks documents to be produced for a legitimate forensic purpose.

9. [26]

   The issuing party needs to precisely and expressly identify the purpose – that is, they must identify the use they wish to make of the documents that they seek unless the court considers the matter is obvious or is willing to accept an assurance from experienced counsel.

10. [27]

    The purpose identified must be a legitimate forensic purpose and there needs to be an identification of the issue to which the documents are relevant, and how the documents will assist in resolving that issue.

11. [28]

    In the past, the test applicable in civil proceedings in terms of the degree of confidence with which the court must be satisfied that the documents will assist the party seeking them has been expressed as including definite grounds for expecting to find material of real importance to the party seeking disclosure: Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 436D; or, some concrete ground for believing that the documents contain material substantially useful to the party seeking it: Alister v the Queen (1984) 154 CLR 404.

12. [29]

    What must be shown to establish legitimate forensic purpose has recently been re-examined and clarified by the NSW Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (“Blacktown City Council”). Bell P (as he then was) said:

13. [30]

    Once documents are produced to the court, as stated in Waind v Hill & National Employers Mutual General Association Limited [1978] 1 NSWLR 372, the court has a wide discretionary power as to whether or not the parties will be permitted to inspect the documents produced and if so, subject to what restrictions. The general rule is that the judge, having inspected the documents, will permit inspection of documents that have apparent relevance. Within this power is the power to order redaction of irrelevant parts of documents produced.

Decision

1. [31]

   It is evident that the Notices were deployed to obtain, to the extent possible, documents expected to exist relevant to the police attendance at Sanchia and Maia’s premises on 24 August 2021, as well as the subsequent complaint about it, and the investigation of that complaint.

2. [32]

   Members of the public cannot be expected to know exactly what documents would exist and how they would or should be described. Some latitude should be extended, provided that what is sought are sufficiently described and are “documents” that exist, rather than “evidence” not yet in existence.

3. [33]

   The Notice to Produce for Inspection issued under r 21.10 does not correspond with the requirements of specificity set out in that Rule. The Notice does not describe any “document or thing referred to in any originating process, procedures, affidavits or witness statement” filed or served by the State, nor does it “clearly identify” or describe sufficiently any “specific document or thing relevant to a fact in issue”. Instead, it seeks at best, categories of documents. Mostly the Notice requests “evidence” and engages in a kind of hybrid interrogation. The Notice under r 21.10 is defective and accordingly is set aside.

4. [34]

   Turning to the Notice to Produce to the Court under r 34.1, all but paragraph 13 of the Notice seeks “evidence” rather than documents, or seeks to interrogate the defendant or, even more impermissibly, its solicitors. Notices to Produce cannot require a party to create documents to assist the other party or to answer questions. Paragraphs 1 to 12 and 14 to 17 must be set aside on that basis. Paragraph 13 as drafted specifies categories of documents and should not be set aside, but can, with co-operation, be improved.

5. [35]

   The State in its solicitor’s affidavit proposed a redraft of paragraph 13 which would have imposed a time restriction on documents sought to a 4-day period and would have removed from the obligation to produce, any relevant document created before 20 August 2021 or after 24 August 2021.

6. [36]

   Statements or documents, if any, created before 20 August 2021 and after 24 August 2021 regarding the events complained of, are still likely to meet the legitimate forensic purpose test set out in Blacktown City Council.

7. [37]

   On 29 July 2022 I made the following orders:

   1. (1)

      Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16 and 17 of the Notices to Produce issued on the State of New South Wales signed by the first plaintiff on 19 April 2022 and served on the State of New South Wales on 29 April 2022 are set aside.

   2. (2)

      Paragraph 13 of the Notices to Produce is amended to read “All incident reports, COPS events reports, COPS information reports, handover/changeover records, audio recordings, video, notebook entries, diaries entries between 20 August 2021 and 24 August 2021 specific to New South Wales police officers attendance at [REDACTED], Warrazambil Creek in the State of New South Wales.”

   3. (3)

      The State of New South Wales is to produce documents responsive to the amended paragraph(s) 13 above within 7 days by email to the plaintiffs at their address for service noting those records will be redacted and are permitted to be redacted so that any material irrelevant or outside the contents of amended paragraph 13 of the Notice because they are not related to the attendance referred to in the order 2 above, is unable to be seen.

   4. (4)

      The defendant is to file and serve its evidentiary statements on or before Friday 26 August 2022.

   5. (5)

      The plaintiffs are to file and serve any evidentiary statements in reply on or before Friday 9 September 2022.

   6. (6)

      The matter is listed for directions before Lonergan J at 9:30am on 15 September 2022.

   7. (7)

      Costs of the Notice of Motion are reserved.

8. [38]

   I now make the following further orders to reflect my further consideration and conclusions:

   1. (1)

      The Notice to Produce for inspection under r 21.10 is set aside in full.

   2. (2)

      Order 2 made on 29 July 2022 is set aside, and in lieu thereof, paragraph 13 of the Notice to Produce to the Court under r 34.1 is amended to read as follows:

   3. (3)

      The State of New South Wales is to produce to the Court any further documents in response to the reworded paragraph 13 (set out in order 9 above) on 15 September 2022 at 9:30am.

Costs

1. [39]

   The State’s Notice of Motion to set aside the Notices to Produce has been almost entirely successful.

2. [40]

   Ancillary orders sought in the Notice to permit redaction of documents to remove irrelevant and confidential police information about other matters were necessary and appropriate.

3. [41]

   I accept that it is unlikely any agreement would have been reached with the plaintiffs about production of documents or the necessary redactions.

4. [42]

   The Notices were prolix and inappropriately sought “evidence” and answers to questions including questions about entirely irrelevant matters and privileged information rather than documents.

5. [43]

   In those circumstances the plaintiffs should pay the defendant’s costs of the Notice of Motion.