Strange v Turnbull

On 29 July 2014, at a time when he was the owner of farming property near Moree in northern NSW, Ian Robert Turnbull (“Mr Turnbull”) shot and killed Glen Turner (“Mr Turner”), a government officer to whom he took exception.

Mr Turnbull was subsequently convicted of murder and sentenced to imprisonment. He died in gaol in March 2017. His deceased estate is represented in the current proceedings by his executors (his wife and his son, Grant), jointly described for the purposes of the proceedings as “the first defendant”.

The plaintiff in the current proceedings is a co-worker of Mr Turner who was present at the time of Mr Turner’s murder and who, in other proceedings, sues Mr Turnbull’s estate for damages for nervous shock.

In the current proceedings, the plaintiff invokes section 37A of the Conveyancing Act 1919 NSW to challenge the validity of transfers of property made by Mr Turnbull, in favour of his wife (in her own right, the second defendant), between January-October 2015 or thereabouts.

At that time, Mr Turnbull was held in custody by the NSW government agency known as “Corrective Services NSW”.

At the request of the plaintiff, on 20 February 2018, a subpoena for production was issued by the Court, addressed to Corrective Services NSW, seeking (in paragraph 2 of the schedule to the subpoena) the following class of documents or things:

Two computer disks have been produced by Corrective Services NSW in answer to this paragraph of the subpoena. The first was produced under cover of a letter dated 15 March 2018 addressed to the Court by the Office of the General Counsel, Department of Justice. The second was produced under cover of a letter dated 15 May 2018 addressed to the Court by the same office.

No objection has been taken by or on behalf of Corrective Services NSW to production of the computer disks, but the second letter included a request in the following terms made by the author of the letter (a solicitor in the Office of the General Counsel):

By paragraphs 5-7 of an amended notice of motion filed on 2 May 2018, the defendants sought, inter alia, orders to the following effect:

The motion came on for hearing before me on 12 June 2018. Some parts of the motion (including the claims for relief referable to the Corrective Services subpoena) have been determined. Other parts remain to be determined.

Upon the hearing of the motion so far as regards the Corrective Services subpoena, the defendants pressed paragraphs 5 and 6 of the motion but, with the acquiescence of the plaintiff, announced that the parties had agreed that, if the relief sought in paragraphs 5 and 6 of the motion were to be refused, they were in agreement that the scope of the recorded conversations to which the plaintiff might have access should be limited to the period (identified in paragraph 7 of the motion) between 29 July 2014 and 3 October 2015.

The defendants advanced two objections to the disputed subpoena. Their primary objection was that production of the materials sought in the subpoena was precluded by provisions of the Privacy and Personal Information Protection Act 1998 NSW. The second ground was that the subpoena should be set aside as an abuse of process in the character of a “fishing expedition” on the part of the plaintiff.

After hearing evidence and argument, I made orders and a notation to the following effect:

This notation was made, at the invitation of senior counsel for the defendant, upon his intimation that his clients were likely to seek to challenge my determination on appeal.

These reasons for judgment are published as the anticipated, supplementary reasons for my determination about the proper construction of the Privacy and Personal Information Act.

The ex tempore reasons for judgment given orally on the hearing of the motion, in relation to the Act were in the following terms (here lightly edited):

I do not accept, as the defendants would have it, that (on the proper construction of sections 18, 22 and 23) a public sector agency is bound, and able, to comply with a subpoena only if it is limited to law enforcement purposes or otherwise by reference to constraints found in section 18. I do not read section 23(6) as requiring section 23(5)(c) to be read down so as to limit the field of operation of a subpoena, a form of judicial process.

Nothing in the explanatory memoranda or the second reading speeches which led to the enactment of the Privacy and Personal Information Protection Act in 1998 or to amendment of section 23 in 2015 throws significant light upon the proper construction of the provisions (principally, sections 23(5)(c) and 23(6)) of the Act presently in contention.

In my opinion, unless the Privacy and Personal Information Protection Act operates, on its proper construction, as an impediment to enforcement of the subpoena, the plaintiff has a legitimate forensic purpose in seeking access to the subpoenaed material as likely to bear upon questions for determination by the Court, by reference to section 37A of the Conveyancing Act 1919, in the principal proceedings. The scope of the subpoena, as agreed between the parties, is directed to a period coincident with the time between Mr Turner’s murder and the last of Mr Turnbull’s challenged property transfers. The fact that Mr Turnbull was in custody, and likely to remain in custody for a substantial period, might reasonably be thought to provide a reason for property to be transferred out of his name into that of his wife. He might reasonably be expected to have discussed this, if not deeper motivations for property transfers, in recorded conversations with his wife and son.

Debate about the proper construction of the Privacy and Personal Information Protection Act focussed principally on sections 17, 18, 22 and 23(4) – (6A) which (for convenience, and with emphasis added) are here set out:

If my determination of the defendants’ motion so far as concerns the Corrective Services subpoena survives challenge, it may be necessary for the Court to give directions designed to facilitate a grant of access to the subpoenaed material. A formal order for access has yet to be made.

It might also be necessary to give directions in the principal proceedings, and in related proceedings (styled “Mackenzie v Turnbull” and numbered 2017/00290612) in which Mr Turner’s widow and children seek relief under section 37A of the Conveyancing Act, similar to that sought in the current proceedings by the plaintiff, in aid of separate proceedings under the Compensation to Relatives Act 1897 NSW.

Subject to any orders made in the meantime, the two sets of section 37A proceedings presently stand listed for final hearing before Rein J on 9 July 2018.