Seven Network (Operations) Limited v Shane Dowling

1. [1]

   HER HONOUR: In this matter, the defendant filed a motion seeking orders that an interstate judge be appointed to hear the matter or that the matter be transferred to the Federal Court of Australia, and that a subpoena be set aside. The motion came before me for hearing twice. On the first occasion, the defendant sought to adjourn the hearing of the motion, and I granted that application. On the second occasion, the defendant sought a stay of the proceedings and declined to deal with his motion.

2. [2]

   Before determining the defendant’s application for a stay and what, if anything, should be done with the motion, it is necessary to set out the procedural history of this matter. From time to time, the defendant referred to other proceedings in the Common Law Division of this Court which I understand concerned contempt proceedings in respect of comments made by the defendant about judicial officers (Common Law Proceedings). I will also refer to those proceedings where necessary.

3. [3]

   In 2014, the plaintiffs had a dispute with an employee. Following mediation, the plaintiffs and the employee entered into a Deed of Release, the terms of which were confidential and included an agreement by the employee not to publish confidential information. The employee did not comply with the terms of the deed. In 2017, the plaintiffs commenced proceedings against the employee seeking orders restraining the employee from using confidential information in breach of the deed (Employee Proceedings). On 13 February 2017, interim orders were made by McDougall J restraining the employee from using confidential information in breach of the deed.

4. [4]

   On 20 February 2017, the defendant issued a tweet in respect of the Employee Proceedings. On 21 February 2017, McDougall J extended the interim orders concerning the employee and the defendant issued a second tweet on the subject. On 22 February 2017, the plaintiffs became aware of a website which contained commentary on the Employee Proceedings (New Website). On 28 February 2017, an existing website associated with the defendant published the Deed of Release (Old Website).

5. [5]

   In April 2017, the defendant sent an email to the plaintiffs’ directors and lawyers posing various questions about the employee and then tweeted his email. The defendant published McDougall J’s orders, his email to the plaintiffs and his tweets on the Old Website. These items also appeared on the New Website. The plaintiffs’ solicitors asked the defendant to delete the tweets, and the defendant agreed to do so.

6. [6]

   On 19 April 2017, the plaintiffs commenced these proceedings against the publisher of the New Website, seeking various orders restraining the use of material which essentially derived from the Deed of Release. On 19 April 2017, orders were made by Ward CJ in Eq for interim orders restraining the publisher of the New Website from using or disclosing the confidential information and ordering the removal of an article from the New Website. Apparently, these orders were not complied with. At this time the publisher of the New Website had not been ascertained with any certainty and was simply referred to in the pleadings and orders as “Publisher X”.

7. [7]

   On 23 June 2017, the matter came before Slattery J for directions. The plaintiffs had by then formed the view, rightly or wrongly, that the defendant was the publisher of the New Website. The defendant denies this emphatically. The plaintiffs sought leave to amend their summons to refer to the defendant instead of “Publisher X”. His Honour granted leave to amend the summons to name the defendant.

The Subpoena

1. [8]

   In the meantime, on 21 June 2017 the NSW Police executed a search warrant at an address in Bondi Beach. The plaintiffs came to learn of this fact from comments made by the defendant on his website. On 5 July 2017, at the plaintiffs’ request, a subpoena was issued to the Commissioner of Police for production of the following material (the Subpoena):

2. [9]

   On 11 July 2017, a copy of the Subpoena was served on the defendant. Rule 33.5(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) requires a party at whose request the subpoena is issued to serve a copy of the subpoena on the other parties to the proceedings “as soon as practicable after the subpoena has been served on the addressee”. Ordinarily, providing the defendant with the subpoena on 11 July 2017 would not be considered “as soon as practicable” after the subpoena was served on the Commissioner of Police, although I do not know how easy or difficult it was to serve the defendant at that time.

3. [10]

   On 14 July 2017, the matter was listed for return of subpoena before a Registrar of this Court. There was no appearance by the defendant. The Registrar made a general access order in respect of the Hard Drive. The matter was stood over for further return of the Subpoena on 17 July 2017 at 9.00am. The plaintiffs arranged for the Hard Drive to be uplifted and copied by approved copiers. Later on 14 July 2017, NSW Police produced a laptop in further answer to the Subpoena. The Exhibits Office identified the laptop as “S-6” (the Laptop).

4. [11]

   On the evening of Sunday, 16 July 2017, the defendant sent an email to the Associate to Her Honour Justice McCallum, a judge of the Common Law Division of this court, requesting an urgent hearing on 17 July 2017 to stop the plaintiffs having access to the Laptop, and for an order that the Laptop be returned to him. Apparently, the defendant sent this request to her Honour as she had carriage of two other matters in which the defendant was a party.

5. [12]

   At 9.00am on 17 July 2017, at the further return of the Subpoena before the Registrar, the plaintiffs sought access to the Laptop. The defendant appeared and opposed the order. After argument, the Registrar made the following order for access:

6. [13]

   At 11.10am on 17 July 2017, the defendant appeared before McCallum J, who was sitting as Duty Judge in the Common Law Division. Her Honour explained to the defendant that there are two divisions in the Supreme Court, being the Common Law Division and the Equity Division. The defendant asked her Honour to deal with the matter given that she had carriage of the two other matters in which the defendant was a party. The defendant informed her Honour that the material on the Laptop was relevant to his conduct of those proceedings as it had “all my data, it’s got privileged information etc”. Her Honour agreed to deal with the defendant’s application to review the access orders made by the Registrar in respect of the Laptop. At the conclusion of the hearing later that day, her Honour directed the plaintiffs to endeavour to contact the person currently in possession of the Laptop and request that person to make arrangements to have the Laptop returned to her Honour’s Associate. Her Honour also vacated the order for access made by the Registrar that day in respect of the Laptop. At 4.57pm, the defendant signed a receipt acknowledging receipt of the Laptop from her Honour’s Associate.

7. [14]

   On Tuesday 18 July 2017 at 2.00pm, her Honour gave an ex tempore judgment varying the Registrar’s orders to return the Laptop to the defendant and vacate the order for general access with respect to the Hard Drive: Seven Network v Dowling [2018] NSWSC 1803. The plaintiffs’ senior counsel informed her Honour that a copy of the Hard Drive had been made by approved copiers and delivered to the plaintiffs’ solicitors, who had made a further copy but not inspected the Hard Drive. The plaintiffs’ counsel offered to provide both copies of the Hard Drive to her Honour. Her Honour noted the following:

8. [15]

   The two copies of the Hard Drive remain in an envelope in the Court’s file marked “No access is to be granted without leave of the Court”. As such, of the two items produced by NSW Police, one, the Laptop, was returned to the defendant and the second, the Hard Drive has been copied but the copies are with the Court and the question of access to the Hard Drive is yet to be determined.

Contempt Motion

1. [16]

   On 21 July 2017, the plaintiffs filed a motion seeking a declaration that the defendant was in contempt of court for breaching the orders made by the Court on 19 April 2017 and related orders (Contempt Motion). On 24 July 2017, the matter came before the Equity Duty Judge Rein J for directions. There was no appearance by the defendant. Directions were made for the plaintiffs to serve a statement of claim, evidence in support of the Contempt Motion and for the defendant to file a defence. In addition, his Honour made the following orders in respect of the Subpoena:

2. [17]

   On 9 August 2017, the defendant was sentenced to four months imprisonment. On 25 August 2017, this matter came before Pembroke J for directions. There was no appearance by the defendant as he was in gaol. His Honour made directions for the filing of a defence and affidavits by the plaintiffs in support of the Contempt Motion and, in respect of the Subpoena:

3. [18]

   On 28 September 2017, the Court received a letter from the defendant seeking summary dismissal of these proceedings given the plaintiffs’ alleged contempt:

4. [19]

   On 3 October 2017, the matter was listed for directions before the Registrar. There was no appearance by the defendant who remained in gaol. The Registrar made various orders in respect of the Contempt Motion and also made the following order in respect of the Subpoena:

5. [20]

   On 5 November 2017, the defendant sent an email to the Associate of His Honour Justice Kunc seeking a stay of the proceedings until he was released from gaol. The defendant also sent a letter to His Honour in similar terms. On 7 November 2017, the Registrar stood the matter over to 11 December 2017 before His Honour Justice McDougall, presumably as a result of the defendant’s correspondence asking for a stay. On 11 December 2017, McDougall J adjourned the matter until 13 December 2017.

6. [21]

   On 13 December 2017, the defendant appeared and sought an adjournment having regard to his recent release from gaol. The plaintiffs sought access to the Hard Drive as the plaintiffs wished to rely upon the contents of the Hard Drive in support of the Contempt Motion listed for hearing on 30 January 2018, to which the defendant said to his Honour:

7. [22]

   Given the Contempt Motion listed for hearing on 30 January 2018 before Kunc J, McDougall J made the following orders:

Transfer Motion

1. [23]

   On 12 January 2018, the defendant filed a motion (Transfer Motion) seeking orders that:

   1. (1)

      an interstate judge be appointed to hear the matter or that the matter be transferred to the Federal Court of Australia; and

   2. (2)

      the Subpoena be set aside.

2. [24]

   On 30 January 2018, the Contempt Motion and Transfer Motion came before his Honour Kunc J. The defendant appeared and sought an adjournment to get legal advice. The plaintiffs consented to an adjournment for that purpose but pressed for access to the Hard Drive. The plaintiffs’ counsel said he anticipated that the Hard Drive may contain material relevant the Contempt Motion and was also relevant to the substantive proceedings. The transcript contained the following exchange:

3. [25]

   His Honour noted that, as the defendant was not a lawyer and was not subject to the duties that a lawyer normally had to the Court, an appropriate regime needed to be in place so that, when the defendant inspected the Hard Drive, the documents remained under the control of the Court. The plaintiffs said that they were willing to pay the costs of having a court approved copier make a complete copy of the Hard Drive for the defendant. The defendant expressed disquiet about the Hard Drive leaving the Court to be copied as this created an opportunity for other people to get copies of the Hard Drive. His Honour invited the parties to discuss a practical way to enable the defendant to inspect the Hard Drive and to inform his Honour’s chambers of what agreement or arrangements were reached. The defendant suggested that an option might be that he come in with his own laptop and charger and sit and have a look at it:

4. [26]

   After further discussion, the defendant decided that he would not inspect the Hard Drive until he had obtained legal advice. His Honour made the following orders:

5. [27]

   On 28 February 2018, the defendant communicated with the Associate to His Honour Kunc J advising that he had just been approved for Legal Aid and Legal Aid was in the process of briefing counsel. The defendant asked that the hearing the next day be adjourned. His Honour adjourned the hearing to 10 April 2018.

6. [28]

   On 10 April 2018, the defendant appeared but without legal representation. The defendant informed his Honour that his legal representation had in fact been approved for another matter which had resolved. The plaintiffs’ counsel sought again to formulate a means by which the defendant would inspect the Hard Drive. The plaintiffs’ counsel indicated that the contents of the Hard Drive were thought to contain information which might show that the defendant was the author of the publications which are the subject of the proceedings, and also the subject of the Contempt Motion. The defendant added:

7. [29]

   The parties then discussed the defendant inspecting the Hard Drive as follows:

8. [30]

   Further discussion ensued as to whether prayer 1 of the Transfer Motion should be heard first, being the application to transfer the proceedings to another court, or whether the Transfer Motion and the Contempt Motion should be heard together. The following exchange occurred:

9. [31]

   Further lengthy discussion ensued as to when suited the defendant to inspect the Hard Drive and whether he wished to put on any further affidavits in support of the Transfer Motion. Ultimately, the defendant suggested:

10. [32]

    His Honour agreed, but then the defendant repeated his contentions that the Subpoena should be set aside completely. The hearing continued:

11. [33]

    As a result, his Honour indicated he would not make an access order. Rather, the Transfer Motion would be heard before the Contempt Motion. His Honour clarified whether, in light of the defendant’s motion to transfer the proceedings to another court, the defendant objected to any particular judge in the Equity Division hearing the Transfer Motion.

12. [34]

    Further discussion ensued between the parties as to an appropriate timetable for the defendant to put on any further evidence and submissions in respect of the Transfer Motion. Eventually, his Honour made the following orders:

13. [35]

    On 12 June 2018, the defendant filed a further affidavit in support of the Transfer Motion. The affidavit largely duplicates the material accompanying his first affidavit.

14. [36]

    On 13 June 2018, the matter came before the Registrar, as Kunc J had ordered that it would. The defendant appeared. The Registrar listed the motion for hearing at 10.00am on 13 September 2018 with an estimated hearing time of one day. The Registrar made orders for the parties to file any further evidence and submissions in respect of the Transfer Motion, including that the defendant file and serve any evidence and submissions in reply by 25 July 2018.

15. [37]

    It is the practice of the Equity Division, as set out in Supreme Court Practice Note SC Eq 1, “Supreme Court Equity Division – Case Management in the Equity General List” that Court Books are prepared for the hearing of interlocutory applications. The usual order for the hearing of interlocutory applications is:

16. [38]

    Ordinarily, the Court Book is prepared by the applicant on the motion, which in this case would be the defendant. A Court Book was not provided to my chambers and, observing that the defendant was self-represented, my Associate contacted the clerk of the plaintiffs’ senior counsel and asked that a Court Book be prepared. On 10 September 2018, the plaintiffs’ solicitor emailed my Associate, copying the defendant, advising that there may be difficulties making the Court Book available to the defendant as he was in gaol and had indicated in separate proceedings in the Common Law Division that he did not wish to be required to attend court in person but rather by audio visual link. Nonetheless, the plaintiffs’ solicitors agreed to compile and send a Court Book to the gaol. On being informed that the defendant was in prison, I made orders for the defendant to appear by audio visual link.

17. [39]

    On 11 September 2018, a Court Book was delivered to the prison. On 12 September 2018, the defendant was provided with the Court Book. The Court Book contained the following material:

First hearing

1. [40]

   On 13 September 2018, the hearing of the Transfer Motion was listed before me. The defendant appeared by audio visual link. The defendant informed me that he did not have the Court Book with him in the video booth and had only been given 10 minutes’ notice of the hearing by prison officers. The defendant said he was not in a position to proceed with the hearing and would not be in a position to do so until he was released from gaol. I indicated that I was not minded to adjourn the hearing of the Transfer Motion given the procedural history of the matter. The defendant said he had been denied natural justice, did not have access to all of his documents, was otherwise engaged in preparing for other court proceedings, repeated his remarks about judicial officers and lay on the floor of the video booth. The court adjourned until a correctional officer provided the defendant with the Court Book in the video booth and he was given an opportunity to resume his seat.

2. [41]

   After the adjournment, the defendant declined to participate in the proceedings and declined to identify the affidavits which he relied upon in support of the Transfer Motion. The defendant sought an adjournment of the hearing of the Transfer Motion until he was out of gaol which “should be 21 September 2019” which was, obviously, a year away. The plaintiffs indicated they agreed to an adjournment of two weeks. I agreed to adjourn the motion to 11.30am on 27 September 2018. I made the following orders:

3. [42]

   After the conclusion of the hearing, the orders which I had made were sent by facsimile to the defendant, and the prison confirmed that the orders had been provided to the defendant at 12.14pm.

Application for Removal

1. [43]

   On 23 September 2018, the defendant faxed to my chambers an Application for Removal to the High Court of Australia. The defendant noted in his cover email:

Second hearing

1. [44]

   On 27 September 2018, the Transfer Motion was listed before me at 11.30am for hearing. The defendant appeared by audio visual link. I proposed to treat the Application for Removal as an application for a stay and to deal with the application for a stay and the Transfer Motion by receiving evidence and submissions from the parties on both applications; reserving judgment on both applications; and, in the event that grant the stay, giving judgment on the stay application only. The defendant refused to deal with Transfer Motion until he was released from gaol. He said he was being denied natural justice and his human rights. He repeated his remarks about judicial officers.

2. [45]

   The plaintiffs were not aware of the Application for Removal but agreed to proceed nonetheless. I heard, firstly, the defendant’s application for a stay and then endeavoured to deal with the Transfer Motion. The defendant again indicated in no uncertain terms that he was not going to proceed on his motion. I informed him that, if he refused to participate in the hearing of the Transfer Motion, I may dismiss the motion because he declined to progress it. I asked him to identify the evidence that he relied upon in support of the Transfer Motion and he declined to do so. He declined to deal with the Transfer Motion.

3. [46]

   The plaintiffs sought dismissal of the Transfer Motion and an order for general access in respect of the Hard Drive. I expressed a concern that there may be material on the Hard Drive which was subject to a claim for legal professional privilege and I did not wish that any privilege be lost by granting general access. I suggested that the court might appoint an expert in the first instance to identify any privileged material so that the defendant’s privilege was preserved. The plaintiffs did not oppose the defendant having first access to identify privileged material nor to appointing an expert who would attend to this task given that the defendant was in prison and not legally represented. The defendant then made submissions which were largely not directed to the matters being discussed at the time but observations of a more general nature.

4. [47]

   The fact that the defendant has filed an Application for Removal under section 40 of the Judiciary Act 1903 (Cth) with the High Court of Australia does not, without more, stay these proceedings. The Court does not have a specific statutory power to stay the proceedings where an Application for Removal has been filed with the High Court, unlike the power to stay proceedings in the event of an appeal to the High Court (section 77U, Judiciary Act), the power of the Court of Appeal to order a stay of the decision below (rule 51.44, UCPR) or where proceedings are transferred between the Local Court, District Court or Supreme Court of New South Wales (section 142, Civil Procedure Act 2005 (NSW)). In each of these situations, a stay does not automatically follow simply by reason of having lodged an appeal or having transferred a case from one court to another.

5. [48]

   The Court has a general power to order a stay under section 67, Civil Procedure Act:

6. [49]

   In deciding whether to stay proceedings, the Court must weigh the prejudice to each party in light of the prospects of success in the higher Court. In Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681, Brennan J said at 685:

7. [50]

   A case which has some similarities to the one before me is Griffin v Council of the Law Society of NSW [2016] NSWCA 275. Mr Griffin, a solicitor, appealed to the Court of Appeal against a finding of professional misconduct made by the NSW Civil and Administrative Tribunal of New South Wales (NCAT) and also filed an Application for Removal to the High Court. Enforcement of NCAT’s orders was stayed by the Court of Appeal pending determination of the appeal to it. However, a stay of proceedings in the Court of Appeal in light of the Application for Removal was refused. His Honour Emmett AJA considered the prospects of success in the High Court, the delay in bringing the removal proceedings and the costs that would be occasioned by vacating the hearing of the appeal: at [33]–[35].

8. [51]

   Adopting these principles, I do not think there is a substantial prospect that that the High Court will accede to the defendant’s Application for Removal. Section 40 of the Judiciary Act provides (emphasis added):

9. [52]

   It is not clear to me that these proceedings include a cause “arising under the Constitution or involving its interpretation” nor “a cause involving the exercise of federal jurisdiction” by the Supreme Court of New South Wales. The Application for Removal does contain the word “constitution” and cites Lange v Australian Broadcasting Commission (1997) 189 CLR 520. It may be that the defendant has in mind an argument concerning the implied freedom of political communication, or perhaps an argument that the common law of contempt is an impermissible burden on that implied freedom, although the Application for Removal does not say so: see Gray, “Contempt and the Australian Constitution – Part I” (2017) 22 Journal of Judicial Administration 3. Even if that is what the defendant has in mind, it is not clear to me how such an argument arises out of these proceedings, which concern whether “Publisher X” has published material in breach of confidentiality obligations arising from the Deed of Release between the plaintiffs and their employee.

10. [53]

    Rather, the basis of the Application for Removal is, as I understand it, that by reason of the Common Law Proceedings, these proceedings cannot be heard by any judge of this Court. The disqualification of judges is not a matter of a constitutional character: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300 at [7]–[8]. In any event, the weight of authority suggests that such an application will likely fail. A not dissimilar argument was considered by the High Court in Re Colina; ex parte Torney (1999) 200 CLR 386, which concerned contempt proceedings in the Family Court of Australia. The facts were outlined by Gleeson CJ and Gummow J at [7]:

11. [54]

    Proceedings against Mr Torney for contempt were listed for hearing before Burton J. Before the charges came on for hearing, a national conference of the Family Court of Australia was held in Melbourne at which the Chief Justice, Nicholson CJ, made a speech and gave interviews in which he vigorously defended the Family Court against public attacks on the institution, including by saying:

12. [55]

    Mr Torney contended that one would have little difficulty in identifying him as being amongst the “strident critics” referred to or as being a representative of the “sinister element” said to be “at work”: at [10]. Mr Torney said this created the appearance of institutional bias in the Family Court of Australia and he sought an order that Burton J be prevented from hearing the contempt allegation. Gleeson CJ and Gummow J noted at [29]:

13. [56]

    Similarly, Callinan J noted at [142]:

14. [57]

    Likewise in Heedes v Legal Practice Board [2005] WASCA 166, the Legal Practice Board filed a motion alleging contempt of court against Mr Heedes for purporting to act as a legal practitioner without being admitted to practice. The motion for contempt was listed for directions before a Master, who made intemperate remarks about Mr Heedes. The motion for contempt was listed before McKechnie J. Mr Heedes admitted he was not a certificated legal practitioner and his Honour found that contempt had been proved. Mr Heedes appealed, citing the intemperate remarks of the Master as giving rise to a reasonable apprehension of bias with the consequence that Mr Heedes was denied procedural fairness. The appeal was dismissed. As Roberts-Smith JA noted at [50]:

15. [58]

    Of course, in both cases, a court officer had made a comment which was said to give rise to an apprehension of bias. Here, the defendant does not point to anything said by a judicial officer but, rather, to what he has said about judicial officers as somehow preventing other judges of this Court fairly deciding other proceedings in which he is a party.

16. [59]

    I note that a similar application was made by Oliver and Dragan Markisic to Schmidt J in Attorney General v Markisic [2011] NSWSC 1436. Her Honour was asked to disqualify herself on the basis that a fair minded observer would form the view that she was biased and, at [20]:

17. [60]

    The Markisics suggested that it was necessary for the court to make arrangements to have a judge from another country appointed to preside in the proceedings. Her Honour did not accept this submission. At [25]:

18. [61]

    The defendant made a similar application in Prothonotary of the Supreme Court of New South Wales v Dowling [2017] NSWSC 392 that an interstate judge be appointed for the hearing of the Common Law Proceedings because the allegations made against him concerned allegations which he had made against Judges and a Registrar of this court. Her Honour Justice Adamson dismissed his application. At [9]:

19. [62]

    Her Honour was obviously correct. The proceedings before me are even further removed from the circumstances considered by Adamson J. These proceedings concern an application by the plaintiffs for relief by reason of the defendant’s disclosure of the confidential information in the Deed of Release between the plaintiffs and their former employee. Whatever the defendant has said about judicial officers is irrelevant to the subject matter of these proceedings.

20. [63]

    Overall, it seems to me that even if the subject of these proceedings gives rise to an issue of the character referred to in section 40 of the Judiciary Act, the prospects of success of the Application for Removal being acceded to by the High Court are low as the only argument I can infer from that document is contrary to authority.

21. [64]

    Further, the balance of convenience favours the plaintiffs. These proceedings were commenced in April 2017. The question of the access to the Hard Drive has been in issue since July 2017. The Transfer Motion has been on foot since January 2018. There is a protracted history of delay which I have earlier set out. The defendant did not file the Application for Removal until after the hearing of the Transfer Motion on 13 September 2018 was adjourned. No explanation for the delay in filing the Application for Removal was given. In these circumstances, I refuse the defendant’s application for a stay.

22. [65]

    Section 61(3) of the Civil Procedure Act gives the Court power to make orders where the Court’s directions have not been complied with, including by dismissing or striking out part or all of a claim and making such order as it considers appropriate.

23. [66]

    The court may also order that proceedings be dismissed if a party does not prosecute the proceedings with due dispatch: rule 12.7, UCRP. While the rule is directed to proceedings as a whole, Schmidt J made an order under this rule in similar circumstances to those before me in Monteiro v State of New South Wales (No 4) [2016] NSWSC 1626. Her Honour explained, at [23]–[24]:

24. [67]

    The defendant has refused to move on the Transfer Motion, twice. It is his motion. The Transfer Motion was filed six months after the Subpoena was first returnable before the Registrar, and only then after orders were made on four orders to file such a motion. This was referable to the defendant being unable to appear due to his imprisonment, and I do not criticise him for this. After release from gaol, another eight months passed between the filing of the Transfer Motion and the hearings before me, during which time the hearing of the Transfer Motion was adjourned four times. Whilst the defendant went back to gaol in August 2018, he was able to appear before me by video link on both occasions in September 2018.

25. [68]

    The procedural history of the Transfer Motion, and indeed the proceedings generally, indicate that the defendant has engaged in significant ‘ducking and weaving’ in respect of the Transfer Motion in general and the Hard Drive in particular. The defendant has from time to time offered to inspect the Hard Drive to determine whether, in fact, he has any objection to general access but, ultimately and on each occasion, refrained from doing so. The defendant has, by his actions and inaction, endeavoured, it appears to me, to bring these proceedings generally and the Contempt Motion in particular, to a halt. This is not how the procedures of the Court work.

26. [69]

    At the adjourned hearing of the Transfer Motion on 27 September 2018, the defendant had adequate notice that his motion was to be heard on that occasion. The defendant had adequate time to prepare the motion for hearing. The defendant had the materials on which he relied in support of the motion with him, and had those materials since at least 11 September 2018, being the date when the Court Book was provided to him in gaol. He was familiar with those materials in any event, having prepared the motion and affidavits himself several months earlier. Having regard to these circumstances, section 61(3) of the Civil Procedure Act and to the “overriding purpose” in section 56 of the Act, I dismiss the Transfer Motion.

27. [70]

    I am not prepared to make an order for general access to the Hard Drive as there may be material on the Hard Drive in respect of which the defendant may be entitled to claim client legal privilege under sections 118 or 119 of the Evidence Act 1995 (NSW).

28. [71]

    In addition, by the Contempt Motion, the plaintiffs seek declarations that the defendant was in contempt of Court for breaching the non-disclosure order made by Ward CJ in Eq on 19 April 2017 and has committed offences under section 16 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), which provides:

29. [72]

    In light of this, a privilege against self-incrimination must be considered, although the defendant did not seek to invoke the privilege. A witness may object to giving evidence on the ground that the evidence may tend to provide that the witness has committed an offence or is liable to a civil penalty. Section 128(1) of the Evidence Act 1995 (NSW) provides (emphasis added):

30. [73]

    Section 128 applies equally to giving oral testimony and the production of documentary evidence. This reflects the common law position as explained in Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 by Mason CJ and Toohey J at 502:

31. [74]

    However, a person who may be incriminated cannot make a claim so as to prevent another person revealing the incriminating information: Cross on Evidence (looseleaf, LexisNexis Australia) at [25075]. As Gibbs CJ and Mason and Dawson JJ explained in Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 at 393 (citations omitted):

32. [75]

    Or as Deane J explained in Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 140:

33. [76]

    So, for example, in Microsoft Corporation v CX Computer Pty Ltd (2002) 116 FCR 372, Microsoft served a notice to produce on a respondent, Natcorp, seeking production of documents which had been seized from Natcorp by the Australian Federal Police. Another respondent, Grassia, resisted production by Natcorp by reason of the privilege against self-incrimination. Lindgren J disagreed at [32]:

34. [77]

    Similarly, in Pascoe v Divisional Security Group Pty Ltd [2007] NSWSC 211, a liquidator brought proceedings against a company and its director for insolvent trading. The director sought orders that the company not be required to give discovery or produce any documents as this could expose the director to a civil penalty. His Honour Justice White rejected this as inconsistent with the privilege against self-incrimination. At [43]:

35. [78]

    Whilst section 128 concerns giving evidence at final hearing, section 87 of the Civil Procedure Act deals with the privilege against self-incrimination in interlocutory matters. Section 87(2) provides (emphasis added):

36. [79]

    In this case, the Hard Drive was produced in answer to the Subpoena on the Commissioner of Police and the defendant is not called upon to produce it or say anything about its provenance or contents. Consequently, the defendant does not have a privilege against self-incrimination in respect of the production of the Hard Drive by the Commissioner of Police.

37. [80]

    How then can the Court proceed in the circumstances? Even if the defendant were minded to inspect the Hard Drive, a regime would need to be in place to ensure the safe custody of the Hard Drive and its contents. It is not readily apparent to me how this can be achieved in circumstances where the defendant is in gaol and, as I understand it from what he told me, will be for some time. Whilst the defendant could give instructions to a legal practitioner in respect of what records on the Hard Drive may be privileged, he does not have legal representation.

38. [81]

    Rule 31.54(1) of the UCPR provides:

39. [82]

    Two examples indicate where application of this rule may be appropriate. In Wyong Shire Council v Neuman [2008] NSWSC 1295, Macready AsJ appointed a person to assist him to effectively test the evidence of four competing expert witnesses on a technical matter. The case concerned whether a product known as Envir-o-Agg complied with detailed specifications in a contract to rehabilitate land fill and construct sports fields. The person so appointed sat with Macready AsJ on the bench during the hearing and cross-examined the experts after others had cross-examined them, and assisted Macready AsJ to collate the evidence but not to express any opinion on the subject matter of the hearing: at [16].

40. [83]

    In Ingot Capital Investments v Macquarie Equity Capital Markets (No 7) [2008] NSWSC 199, McDougall J considered numerous question of costs arising from his Honour’s determination of the substantive proceedings between the parties. Some of the parties sought orders that costs be paid in a gross sum. His Honour observed at [245]:

41. [84]

    It seems to me that an order under rule 31.54(1) is appropriate in this case to identify documents in respect of which the defendant may be entitled to claim client legal privilege. From time to time, Sylvia Fernandez, a solicitor and partner of Thomson Geer, has been appointed by the Court to undertake the role of the independent solicitor in the execution of search warrants issued by the Court. In this capacity, Ms Fernandez has served orders, supervised searches and taken custody of items seized under the orders. Ms Fernandez has reviewed information stored on technology devices to determine material that may fall into particular categories or that may belong to a third party. Ms Fernandez informs me that she has no conflict, that is, neither she nor her firm have previously acted in matters concerning the plaintiffs or the defendant. I propose to appoint Ms Fernandez to inspect the Hard Drive and identify any documents over which the defendant may be entitled to claim client legal privilege.

42. [85]

    The contents of the Hard Drive may not be used by the plaintiffs otherwise than for the purposes of the conduct of the proceedings, except by leave of the court, unless the document has been received into evidence in open court: Hearne v Street (2008) 235 CLR 125; Harman v Secretary of State for the Home Department [1983] 1 AC 280; Blanch v Deputy Commissioner of Taxation [2004] NSWCA 461 at [5], per Giles JA (with whom Hodgson and Ipp JJA agreed).

43. [86]

    The question of costs was not canvassed with the parties. In the event that either party seeks a costs order in their favour, they may file and serve written submissions in support of the order they seek within 7 days, failing which costs are reserved.

44. [87]

    I make the following orders:

    1. (1)

       Dismiss the defendant’s application for a stay of the proceedings.

    2. (2)

       Pursuant to Section 61(3) of the Civil Procedure Act 2005 (NSW), dismiss the defendant’s motion filed on 12 January 2018.

    3. (3)

       Pursuant to Rule 31.54 of the Uniform Civil Procedure Rules 2005 (NSW), appoint Sylvia Fernandez, solicitor, of Thomson Geer to provide assistance in these proceedings as follows:

    4. (4)

       Grant the plaintiffs access to the electronic storage device labelled “Available Data: general access pursuant to orders made on 7 December 2018” on and from 1 March 2019.

    5. (5)

       Order the plaintiffs in the first instance to pay Ms Fernandez’ costs of attending to the task referred to in Order (3).

    6. (6)

       Costs are reserved.