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Kelsey v Logan City Council & Ors[2018] QIRC 108

Kelsey v Logan City Council & Ors[2018] QIRC 108

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Kelsey v Logan City Council & Ors [2018] QIRC 108

PARTIES:

Kelsey, Sharon Rae Marie

(Applicant)

v

Logan City Council

(First Respondent)

&

Smith, Timothy Luke

(Second Respondent)

&

Dalley, Cherie Marie

(Third Respondent)

&

Lutton, Russell Bruce

(Fourth Respondent)

&

Swenson, Stephen Frederick

(Fifth Respondent)

&

Smith, Laurence William

(Sixth Respondent)

&

Pidgeon, Philip Wayne

(Seventh Respondent)

&

Schwarz, Trevina Dale

(Eighth Respondent)

&

Breene, Jennifer Rachael Julie

(Ninth Respondent)

CASE NO:

PID/2017/3

PROCEEDING:

Application for Interim Orders

DELIVERED ON:

24 August 2018

HEARING DATES:

2 August 2018

MEMBER:

HEARD AT:

Black IC

Brisbane

ORDERS:

  1. Attendance notice to produce set aside
  2. Application to inspect and copy documents dismissed

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION S TO SET ASIDE ATTENDANCE NOTICE TO PRODUCE  – whether notice correctly issued under subdivision 7 of the rules - objections to notice – applications to set aside notices – whether derivative use of materials obtained by compulsion could be used in a collateral civil proceeding – whether implied limitation on the use of materials obtained by compulsion. 

LEGISLATION:

CASES:

Public Interest Disclosure Act 2010 (Qld), s  48

Industrial Relations Act 2016 (Qld), s  285

Industrial Relations (Tribunals) Rules 2011 (Qld), Part 2 Division 2, subdivision 7, subdivision 7A

Crime and Corruption Act 2001 (Qld), Chapter 2, Chapter 3, s 33, s 34, s 60, s 62, s 197

Trade Practices Commission v Arnotts Limited (19889) 88 ALR 657

Xstrata Queensland Ltd v Santos Ltd & Ors [2005] QSC 323

Leighton Contractors Pty Ltd v Western Metals Resources Limited [2000] QSC 27

National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

Commissioner for Railways (NSW) v Small (1938) 38 SR (NSW) 564

Alder v Khoo & Ors [2010] QCA 360

Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619

Marra Developments Ltd (No. 2) (1979) 4 ACLR 153

Shaw v Yaranova & Anor [2001] VSCA 55

NSW Crime Commission v Hawes (1992) 74 A Crim R 199

Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 075

Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667

Gary Jibson v Q-Comp W/C 2013/145 18 July 2013

Kelsey v Logan City Council & Ors [2018] QIRC 099

Sogelease Australia Ltd & Anor v David James Griffin & Ors [2003] NSWSC 178

Clayton Utz (A Firm) v Dale [2015] 47 VR 48

Australian Securities Commission v Mining Projects Group Limited (2007) 65 ACSR 264

Johns v Australian Securities Commission (1993) 178 CLR 408

Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044

Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564

Williams v Keelty (2001) 111 FCR 175

Flori v Commissioner of Police [2014] QSC 284

R v Leach [2018] QCA 131

Pioneer Concrete Pty Ltd v Trade Practices Commission (1982) 152 CLR 460

Potter v Minaham (1908) 7 CLR 277

Grollo v Macauley (1995) 56 FCR 533

Hart v Australian Federal Police (2002) 124 FCR 384

ASIC v Rich [2005] 220 ALR 324

R v Seller & McCarthy (2013) 273 FLR 155

APPEARANCES:

Mr C.  Murdoch QC, instructed by Minter Ellison Lawyers for the Applicant. 

Mr A.  Herbert of Counsel, instructed by King & Company Solicitors for the First Respondent. 

Mr M.  Trim of Counsel, instructed by Gadens Lawyers for the Second Respondent. 

Mr C.  Massy of Counsel, instructed by McInnes Wilson Lawyers for the Third to Ninth Respondents.

Decision

 Introduction

  1. [1]
    The substantive proceedings (PID/2017/3) involve an application by Sharon Kelsey filed on 1 December 2017 pursuant to s 285 of the Industrial Relations Act 2016 (Qld) (IR Act) and s 48 of the Public Interest Disclosure Act 2010 (Qld) (PID Act).
  1. [2]
    An amended application was lodged by the applicant with the Industrial Registrar on 18 December 2017, and a further amended application was filed in the registry on 10 April 2018. 
  1. [3]
    In her substantive application, the applicant has alleged that the Second to Ninth Respondents have engaged in reprisal conduct as a result her making of a public interest disclosure, within the meaning of s 40 of the PID Act.  The further amended application discloses at paragraph 4(e)(ii) that the applicant had prior to the filing of her application made a complaint to the Crime and Corruption Commission of Queensland (CCC) on 12 October 2017 in connection with her allegations. 
  1. [4]
    It is not in dispute that the CCC has commenced an investigation in respect to the applicant's complaint, and has for that purpose obtained information and documents using the powers conferred on it by Chapter 3 of the Crime and Corruption Act 2001 (Qld) (CC Act).  Chapter 3 of the CC Act authorises the CCC to inter alia issue notices requiring a person to attend a hearing and give evidence, compelling the production of documents, enter official premises and seize documents, and apply for and execute search warrants. 
  1. [5]
    Correspondence later sent by the CCC on 10 July 2018 to lawyers representing the parties to the current proceedings described the scope of its investigation in the following terms:

The CCC is presently investigating the conduct of Mayor Smith in relation to the termination of Ms Kelsey's employment, including allegations that he directed or otherwise influenced seven (7) other councilors to vote in favour of termination as retaliation for Ms Kelsy, in discharging her statutory duty, notifying the CCC of suspected corrupt conduct of the Mayor.  In addition to the conduct constituting reprisal, as referred to above, it would also constitute misconduct in public office, under section 92A(1)(c) of the Criminal Code. 

  1. [6]
    The issue of possible collaboration between councilors was also canvassed in the 10 July 2018 correspondence:

The issue of a direction or influence by the Mayor in relation to the other councilors is a live issue in the QIRC proceedings, as is whether there is an alignment resulting in a voting 'bloc' of seven (7) councilors who vote with the Mayor without exercising independent thought.  A number of councilors who are parties to the QIRC proceedings have sworn affidavits in which they deposed to the fact that they are not aligned or affiliated with the Mayor, and deny that they exercise their votes in accordance with how the Mayor and other councilors vote. 

  1. [7]
    The applicant filed a Form 32 (Request for attendance notice) and a Form 32B (Attendance notice to produce) on 28 June 2018.  The attendance notice (the notice) was directed to The Proper Officer, Crime and Corruption Commission of Queensland.  The notice called on the CCC to produce the documents and things described in the schedule included in the Form 32B.  The schedule identified two categories of documents and things:

1.Documents evidencing communication or collaboration between Mayor Timothy Luke Smith (Mayor) and Councillors Dalley, Lutton, Swenson, Laurence Smith, Pidgeon, Schwarz and/or Breene in relation to matters involving Ms Kelsey and her employment (including any communications through email, social media (including applications with a self-deleting function etc); and

2.Documents (including notes or records of any interactions (including discussions, correspondence, meetings etc) of the Mayor and the Mayor and/or Councillors Dalley, Lutton, Swenson, Laurence Smith, Pidgeon, Schwarz and/or Breene in which matters related to Ms Kelsey’s employment, probation, termination or matters relating to her making of a public interest disclosure or the commencement by her of legal proceedings was discussed. 

In this notice 'documents' include any written or electronic record. 

  1. [8]
    The applicant sought production of the documents pursuant to Rule 58 of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the rules).  Rule 58(1) provides that, on the request of a party, a member of the commission or the registrar may issue an attendance notice to a person.  Rule 58(2) identifies particular circumstances wherein a member of the commission or the registrar may refuse a request of a party to issue an attendance notice.  In processing the notice the registrar did not refuse the request. 
  1. [9]
    The applicant served the notice on the CCC and the respondents on 29 June 2018.  In response, McInnes Wilson, the lawyers for the Third to Ninth respondents, wrote to the CCC on 29 June 2018, informed the CCC of their clients' objections to production, and asked whether the CCC intended to comply with the notice. 
  1. [10]
    In reply on 3 July 2018, the CCC disclosed that a consideration for it in determining whether to comply with the notice was the "nature of the litigation pending in the QIRC and common issues between that litigation and the current CCC investigation".  The CCC also drew attention to the provisions of sections 60 and 62 of the CC Act, stated that the CCC was in a position to assist the QIRC by disseminating information and documents, and said that it was minded to comply with the notice.
  1. [11]
    It is not known how the applicant became aware that the CCC had possession of the material described in the attendance notice.  When the Third to Ninth respondents lawyers put that question to the CCC in correspondence dated 29 June 2018, the CCC responded by saying that the applicant's "complaint, in addition to other matters associated with the Logan City Council, is being investigated by the CCC and this fact is lawfully known" to the applicant and others. Subsequently the CCC said in correspondence dated 10 July 2018 that the applicant's solicitors "had requested the CCC's assistance in providing any evidence which reveals alignment between the Mayor and the seven (7) councilors".  The CCC added that the applicant's solicitors "subsequently obtained from the QIRC and served the Notice". 
  1. [12]
    In compliance with what was sought in the Form 32B, the CCC produced the documents and other materials to the industrial registry on 5 July 2018. It was accepted that, pursuant to s 213(4) of the CC Act, the CCC did not need to comply with the notice, but elected to do so.  The CCC's reasons for complying with the notice were disclosed in correspondence earlier referred to and dated 10 July 2018.  
  1. [13]
    In this correspondence the CCC explained that the provision of the documents was consistent with fairness and the public interest in that it "fulfils the CCC's important role in relation to public officials who make public interest disclosures, and assists the QIRC in arriving at an accurate and truthful factual basis upon which to make decisions". The CCC further explained that "without the provisions of the documents, the QIRC may be in a position where it is denied access to important evidence that is relevant to facts in issue in the proceedings.  Further, the documentation increases the chances of parties being able to appropriately test the veracity of evidence and decreases the chances of the QIRC having false evidence placed before it which is uncontested". It seems to follow from this latter observation that the CCC did not consider that there was any limitation on the derivative use of the material produced to the QIRC and that it could be used by the applicant in the cross-examination of the natural person respondents. 
  1. [14]
    The Second to Ninth respondents to the substantive application have filed notices of objections and applications to set aside the notice to produce.  The Third to Ninth respondents filed an application on 6 July 2018 to set aside the notice to produce.  The Second respondent filed a notice of objection to the notice on 5 July 2018 and subsequently, on 9 July 2018, filed an application to set aside the notice to produce. 
  1. [15]
    It is clear that the applicant believes or suspects that some or all of the material gathered by the CCC in the course of its investigation would assist her case.  Neither the applicant nor the respondents however have specific knowledge of the content of the material held by the CCC or produced by the CCC in compliance with the notice issued by the registrar. 
  1. [16]
    However, after the filing of the applicant's attendance notice, some information has emerged which provides some general appreciation for the nature of the material produced by the CCC.  In the proceedings presided over by Industrial Commissioner Thompson on 11 July 2018[1], he advised the parties that a schedule was attached to the documents produced by the CCC, and that the schedule identified that the material produced:

… identifies matters related to communications between parties.  It notifies identifications relating to group communications, extraction reports.  It identifies transcripts of CCC closed investigative hearings which identifies, amongst others, the councillors that you represent, Mr Massy.  And it also identifies exhibits that have been produced, and it also deals with lawfully intercepted information under the TIA Act. 

  1. [17]
    For the purposes of the determination to be made in this proceeding, this response was not as helpful as it might have been.  A "majority" could refer to anywhere between 51% of documents and 99% of documents.  In circumstances where the CCC appeared motivated to assist the applicant, it is open to infer that a "majority" of documents would more likely fall at the higher end of the scale, rather than at the lower end. 
  1. [18]
    A conclusion that all or most of the material produced by the CCC was obtained under compulsion was supported by a submission of the respondents that the CCC has only a limited number of ways in which it can obtain information for the purposes of its investigations and that all ways involve the use of compulsory procedures.  This is disclosed by the relevant provisions in Parts 1 through 5 of Chapter 3 of the CC Act.  The submission was to the effect that "absent some unusual voluntary disclosure", documents in the possession of the CCC and documents produced in response to the notice would have been, or most likely have been, obtained under compulsion. 

Permission to Inspect and Copy

  1. [19]
    On 11 July 2018 the applicant filed an application seeking permission, pursuant to rules 60(1) and 63(3)(c) and sections 451(2) and 453 of the IR Act to inspect and copy documents produced by the CCC in compliance with the notice.  In the alternative, the applicant sought permission to inspect the documents produced by the CCC in compliance with the notice. 

The Respondents

  1. [20]
    Notices of objection or applications to set aside the notice to produce have been filed by both the Second respondent and the Third to Ninth respondents, but not by the First respondent. 
  1. [21]
    In this regard, the First respondent explained that it had no direct involvement in the matter other than in respect to a potential liability for compensation and penalties derivative of the actions of the Second to Ninth respondents arising from a concession already made to the effect that the decision to terminate the employment of the applicant, being the decision of a majority of members of the Council, was by law a decision of the First respondent. 
  1. [22]
    While the First respondent acknowledged that it had a duty to act cooperatively with the CCC to prevent and deal with corruption, it said that, as a matter of fairness, it supported the submissions made on behalf of the Third to Ninth respondents, "as those submissions appear to be consistent with the maintenance of  the  legal protections available to the respondents other than the First respondent in respect of the matters in contention, and the preservation of those rights is an element of fairness which must be respected". 
  1. [23]
    For convenience, unless specified to the contrary, and noting the qualification placed by the First respondent on its role in the proceedings, this decision will treat the individual arguments presented by counsel representing the various respondents as being arguments which enjoy the support of all respondents. 

Nature of Objections

  1. [24]
    The respondents objected to the notice on various grounds. They considered that discretion to issue the notice miscarried in that the applicant had not made reasonable attempts under sub division 7A of the rules to obtain the documents; that the notice sought documents which were not relevant to a matter in issue in the proceedings; that the notice was not sufficiently particularised and amounted to a fishing expedition; that the CC Act did not authorise the dissemination of documents obtained under compulsion, that there was an implied limitation in the CC Act on the use of material obtained by way of compulsion, that the notice failed to serve any legitimate forensic purpose[2]; and that the notice should be set aside on the grounds of abuse of process. Abuse of process arose because:
  1. (a)
    the applicant was improperly using the notice as a subpoena when its purpose was to obtain non-party disclosure; 
  1. (b)
    by seeking the CCC's documents, the applicant is attempting to gain an advantage not available under the rules which would unfairly distort the substantive proceedings.
  1. [25]
    The notice did not serve any legitimate forensic purpose because it seeks production of documents which will not be able to be admitted into evidence or used in the substantive proceedings arising from implied or express prohibitions on the use of the documents produced and because of the confidential and privileged status of documents obtained under compulsion. Xstrata Queensland Limited[3] was authority for the proposition that "the relative likelihood of the documents being ultimately admitted in evidence is a factor to be considered in assessing whether the subpoena is oppressive".

Applicant's Response to Objections

  1. [26]
    The applicant submitted that the objections raised by the Second and the Third to Ninth respondents should be dismissed.  In summarised form, the applicant submitted in effect that the commission should facilitate the release of:
  • documents produced by the CCC in response to the notice, save for documents that are the subject of a valid claim for legal professional privilege or the privilege against self-incrimination, or that record communications lawfully intercepted under the Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act); or
  • in the alternative, if the commission is satisfied that some materials should not be produced, it should exercise its power to amend the notice or withhold some materials from inspection.  The notice should not be set aside in full. 
  1. [27]
    The applicant submitted that there can be no abuse of process in a litigant seeking access to material which, if denied to her, may itself result in a miscarriage of justice, or an unfair trial.  The applicant rejected the respondents' claims that the documents should not have been produced by the CCC because the release of the documents was not authorised by the CC Act, or because of any implied statutory restriction on the use of the documents.  

 Matters in Issue in the Substantive Proceedings

  1. [28]
    Matters in issue in the substantive proceedings are to be ascertained by reference to the substantive application and, more particularly, the further amended application dated 23 March 2018 and filed on 10 April 2018. 
  1. [29]
    The applicant submitted that the decision to terminate her employment; the reasons of the individual respondents for the termination; the extent to which the individual respondents discussed or collaborated in terms of their decision or reasons for decision; and the extent and nature of collaboration or co-ordination between the Second respondent and the Third to Ninth respondents in relation to the termination, were at the heart of the matters to be determined in the substantive proceedings. 
  1. [30]
    The respondents considered that the central issue in the substantive proceeding was the identification of the reasons of the Third to Ninth respondents for voting to terminate the applicant's appointment. 
  1. [31]
    It can be accepted that the principal enquiry in the substantive proceedings relates to the ascertainment of reasons for proposing or taking the action of termination of employment, including matters associated with the probation review, and the ascertainment of reasons associated with alleged reprisal activities arising from the making of a public interest disclosure including the complaint to the CCC and the commencement of legal proceedings. I accept that the ascertainment of reasons includes a consideration of the issue of alignment between councilors and the extent, if any, of collaboration between councilors about the matters in issue. 

 Was the Notice Validly Issued?

  1. [32]
    Part 2, Division 2 of the Industrial Relations (Tribunal) Rules (Qld) 2011 has separate subdivisions dealing with "attendance notices" (subdivision 7), and "notices of non-party production" (subdivision 7A).  The applicant sought production of documents under subdivision 7. 
  1. [33]
    Rule 58(1) provides that, on request of a party, a member of the commission or the registrar may issue an attendance notice to a person.  The registrar exercised her discretion and issued the notice in the manner sought.  Apart from a possible deficiency in the notice referenced in rule 58(4), the only express basis upon which the registrar could have refused to issue the notice was if the registrar was satisfied, pursuant to rule 58(2), that:
  1. (a)
    the party could require production of the document under subdivision 7A; and
  2. (b)
    the party "has not made reasonable attempts, under subdivision 7A, to obtain the document."
  1. [34]
    The applicant's correspondence filed with her request that the notice be issued noted that the attendance notice was not sought under subdivision 7A of the rules, and stated:

Because of the nature of the documents sought, and the entity those documents are sought from, the Applicant is of the view that it is appropriate that:

  1. any such documents are produced to the Commission rather than the Applicant, so that rule 60 and 63 of the Rules can be followed; and
  1. all parties to the matter can seek access to the documents in accordance with rule 60. 
  1. [35]
    The applicant submitted that the registrar was entitled to grant the request in circumstances where she was under no obligation to refuse the request, where she could exercise a discretion to grant the request, and where the applicant's reasons for seeking production under rule 58 were reasonable and had been adequately explained in correspondence attached to the completed forms 32 and 32B. 
  1. [36]
    The effect of the applicant's submission was that se acted consistently with rule 60 in pressing her application under subdivision 7.  The applicant submitted that had she not followed this course of action, and had rule 64B been followed, the documents sought could potentially have been released to the applicant.  Such release was not considered appropriate given the nature of the documents.  The better approach was to proceed by way of subpoena and require production of the documents to the commission with access by all parties subject to the leave of the commission. 
  1. [37]
    It is problematic whether there was any valid basis for the applicant's approach to the extent that a restriction on direct release of the documents to the applicant could have been effectively accommodated under subdivision 7A.  In this regard, the non-party under rule 64B(3) is asked not to produce the documents within seven days of service, and rule 64F provides that objections to production must be made within seven days of service.  Once an objection is filed, service of the objection operates as a stay of the notice pursuant to rule 64F. 
  1. [38]
    Further, the applicant did not adequately deal with the respondents' submission that there was no form of election associated with the operation of subdivisions 7 and 7A, and the applicant did not have a discretion to choose to proceed via one or the other of the subdivisions.  In this regard the respondents emphasised that procedures applicable to the issue of a subpoena for production are to be distinguished from procedures relative to disclosure, including non-party disclosure, and the differences are not to be regarded merely as alternative or optional methods of obtaining documents. 
  1. [39]
    The purpose of a subpoena for production is to secure the production to the commission of specified documents, not in a party's possession, for the purpose of tendering them in evidence at the hearing. Consistent with the reasoning in Leighton Contractors[4], the relevant procedures were said to serve distinct purposes, and it was an abuse of process to issue a subpoena for production to attempt to obtain, in substance, disclosure, including disclosure from a non-party. What turns on the issue in practical terms is a matter for consideration. 
  1. [40]
    In this regard the respondents drew attention to significant differences in requirements on the party requesting the notice.  Under subdivision 7, the party seeking production must, in the notice, "adequately describe the document or thing" required to be produced.  That is, the recipient of the notice must be able to identify the documents required without having to make a judgment as to the relevance of the documents to the issues in the proceedings. The obligation to assess relevance was said to be the essence of disclosure[5].
  1. [41]
    However under subdivision 7A, a party is restricted to seeking documents "directly relevant to a matter in issue in the proceeding".  Further, the party may not require production if there is available to it another reasonably simple and inexpensive way of proving the matter sought to be proved by the document. 
  1. [42]
    The effect of the difference between the subdivisions was that the CCC was not required to inform itself as to the issues in the proceedings and to make a determination about what was relevant or not relevant.  The CCC was simply required to produce documents that fit the category of documents described in the notice. 
  1. [43]
    This issue was addressed in Commissioner for Railways v Small[6] by Jordan CJ:

A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party.  If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced.  A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter.  It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery.  A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant. 

  1. [44]
    The applicant defended its approach by saying that the notice did not involve "a true disclosure exercise" and that the categories of documents defined in the notice meant that it was not necessary for the CCC to carefully analyse the pleadings or make its own determination about relevance.   This was evident in the CCC response to the notice in that it experienced no difficulty in complying with the notice or in producing the documents in a timely manner.  Nor did the CCC find it necessary to exercise its right to object to the notice on the grounds of relevance or oppression or any other basis.  
  1. [45]
    The respondents concluded that the applicant should not have proceeded by way of subpoena and in circumstances where the applicant admitted that no attempts had been made to comply with rule 58(2) and no attempt made to seek production of the documents under subdivision 7A; where the only reasons proffered for not doing did not satisfy the conditions mentioned in rule 58(2); and where the reasonableness of any attempts to obtain the documents pursuant to subdivision 7A was a mandatory consideration, the exercise of discretion to issue the notice had miscarried, the notice should never had been issued and the notice should be set aside.  In so submitting, the respondents relied on the reasoning of the Court of Appeal in Alder v Khoo[7]and on the reasoning of the earlier case in Leighton Contractors.
  1. [46]
    The applicant however maintained that the current proceeding can be distinguished from Khoo on the facts, while the outcome in Leighton Contractors did not support the setting aside of the notice. The applicant drew attention to the following distinguishing characteristics associated with the current notice:
  1. (a)
    in this matter, the applicant's rationale for using the attendance notice was reasonable and had been explained;
  1. (b)
    the request for a subpoena in this matter is connected with a trial or hearing; and
  1. (c)
    the purpose of a subpoena for production is not limited to securing documents for the purpose of tendering them at a hearing. Xstrata is authority for the proposition that a document need not be admissible for its production to be compelled, it will be sufficient if the document may be used in cross-examination or related to some issue that may be raised.
  1. [47]
    In Leighton Contractors, the issue for determination was whether it was permissible to use a subpoena to obtain what was really non-party disclosure. It was considered implicit in the submissions of the applicant that the methods of obtaining documents by non-party disclosure and subpoena were alternatives. On my reading, and in the context of a determination under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), Leighton is authority for the following general propositions:
  1. (a)
    rules relating to non-party disclosure provide safeguards to a non-party. Where a deliberately prescriptive regime is provided for the obtaining of documents from a non-party, the question presents itself whether the intention was that those safeguards might be avoided by using a different procedure with requirements which are different, but which have some common features;
  1. (b)
    the courts are reluctant to recognise the use of a subpoena duces tecum in substitution for another available procedure when the purpose is to obtain production of the documents in the pre-trial phase, and unconnected with the hearing of an application;
  1. (c)
    if it is apparent that a request for a subpoena is being made where it is unconnected with a trial or hearing, it would be appropriate to exercise a discretion against issuing it;
  1. (d)
    the mere fact that some of the documents, after inspection, will be used as evidence at trial does not qualify the case as one where a subpoena may be used;
  1. (e)
    the rules do not disclose any intention that what is really non-party disclosure in the pre-trial phase may be obtained by issuing a subpoena to produce; and
  1. (f)
    any attempt to use a subpoena for the purpose of obtaining disclosure would be an abuse of process and if a subpoena were issued for that purpose, it would be liable to be set aside on that ground.
  1. [48]
    The primary judge's reasoning in Khoo, which was consistent in the relevant respects with the principles articulated in Leighton Contractors, was endorsed by the Court of Appeal. In particular the primary judge had concluded that:

A subpoena which is sought to be used in circumstances which are inappropriate for a subpoena is an abuse of process. It is not appropriate to use a subpoena process where what is really intended is a non-party disclosure process in a prehearing or pre-trial phase. An attempt to use a subpoena for disclosure would be an abuse of process.

…

The respondent submits, and I agree, that what the plaintiff is really seeking to do impermissibly is by disclosure of the risk management file by the use of a subpoena when that was refused on the proper process against a non-party which was a non-party disclosure application. It’s clear that a subpoena cannot be used when the proper process is non-party disclosure which has already been refused in relation to those documents.

  1. [49]
    While I accept the applicant's submissions that Khoo can be distinguished from the current matter by reference to the prevailing facts and circumstances, both Khoo and Leighton Contractors serve as authority for the proposition that it is not appropriate to use a subpoena process in a pre-hearing or pre-trial phase in substitution for what is in reality a non-party disclosure process. A notice that is issued in these circumstances is liable to be set aside as an abuse of process.
  1. [50]
    The applicant's reasons and submissions supporting the use of a subpoena is to be tested against this principle in circumstances where the rules do not list criteria relevant to the determination of applications to set aside an attendance notice, and the procedures under the rules relevant to attendance notices (subdivision 7) and notices of non-party production (subdivision 7A) are modelled on the provisions of Chapter 11 Part 4 and Chapter 7 Part 2 respectively of the UCPR.
  1. [51]
    I accept that the applicant acted transparently in requesting that the notice be issued under subdivision 7 and that it acted in good faith in the belief that the appropriate course was to facilitate the production of documents directly to the commission in circumstances where, under rule 60, the documents could only be inspected by a party with the permission of the commission or registrar and where the commission or registrar could exercise a discretion to, in effect, remove documents or parts of documents which do not relate to a matter in issue.
  1. [52]
    While I believe that the applicant should have commenced the process under subdivision 7A, and while there are significant differences in terms of processes commenced under subdivision 7 or subdivision 7A, I am satisfied, on the specific facts and circumstances of this matter, that the applicant derived no significant advantage from proceeding under subdivision 7.
  1. [53]
    In a context where the addressee of the notice was the CCC and where the CCC had a high level of familiarity with the matters in issue in the substantive proceedings, not much turns on the fact that the notice adequately described the document or thing as opposed to specified documents that were "directly relevant to a matter in issue in the proceedings" and associated the documents with a "matter in issue in the proceeding about which the document sought is directly relevant". Under both subdivisions, the recipient of the notice could apply to have the notice set aside, and on similar grounds. For the CCC, had the notice been served under subdivision 7A, not a lot would have changed. In probability, it would have been provided with a similar "generalised" description of document categories, and in response it would have produced the same material. In either circumstance, addressing the issue of relevance was unlikely to be a challenging or complex exercise for the CCC. It is improbable that had the notice been issued under subdivision 7A, that the CCC would have altered course and exercised its right to object to the notice or have the notice amended or set aside.
  1. [54]
    I accept the applicant's submission that the notice, in seeking production of materials from the CCC, did not embark on a "true disclosure" exercise and in circumstances where relevance was considered the essence of disclosure, the CCC was uniquely placed to provide documents which it knew were relevant to the substantive proceedings.
  1. [55]
    In circumstances where the CCC was willing to comply with the notice and did not exercise any right to object or apply to set aside the notice, and noting that the CCC was qualified to inform itself about its rights and obligations associated with the notice, the respondents were not prejudiced by the course of action taken by the applicant. It may also be relevant, in terms of the exercise of a discretion, that the applicant was most likely right in asserting that there was little utility in rejecting the notice on the ground under discussion because it was highly likely that a decision to set aside the notice would not end the matter. The applicant would issue a new notice pursuant to subdivision 7A and the respondents would again object to that notice. 
  1. [56]
    Whether any deficiency or non-compliance arising from the requested notice was able to be cured pursuant to rule 226 was not addressed in submissions. Rule 226(1) provides that a failure to comply with the rules "is an irregularity and does not of itself render a proceeding, document, step taken or order made in a proceeding, a nullity". 
  1. [57]
    Rule 226(2) allows the commission, in the event of non-compliance, to take a range of actions including setting aside all or part of the proceeding, or set aside a step taken or order made or make another order dealing with the proceedings generally as the commission considers appropriate.
  1. [58]
    For the reasons given, I exercise a discretion not to set aside the notice on the grounds advanced by the respondents. 

Lack of particularity

  1. [59]
    The respondents took issue with the first part of the notice that sought documents "of" the Second to Ninth respondents.  The complaint was that it was unclear in what was sought in that the word "of" could be construed to refer to documents created by the respondents; documents that had previously been in their possession, or in some other sense "belonged" to the respondents. 
  1. [60]
    The respondents also argued that the notice did not adequately describe the documents sought as required by rule 59(a). In relying on Marsden[8], it was submitted that the requirement to describe "adequately" or "with reasonable particularity" the documents sought, typically requires reference to specific documents.  While it may be permissible in some circumstances to request documents "relating to" a particular subject matter, it must be possible to clearly and precisely identify the class of documents requested. The applicant's inability to identify documents in precise terms demonstrates that she was not aware of which documents, if any, assisted her case. It followed that the breadth of the categories described in the schedule strongly indicated that the applicant, by her notice, is merely enquiring to see if any such documents exist. 
  1. [61]
    In these circumstances, it was left to the CCC to form a judgment about the relevance of documents in its possession to the matters in issue in the substantive proceedings. A predicament said to be analogous to that of a party required to provide disclosure. 
  1. [62]
    The applicant submitted that the schedule to the notice did adequately describe the documents sought as required by Rule 59(a) of the rules, and that what was required to be produced was readily identifiable by reference to the schedule. The notice did not require any judgement as to relevance to be made by the CCC[9].  The CCC experienced no difficulty in complying with the notice, identifying what documents were held in the class requested, and in producing the documents. 
  1. [63]
    I am satisfied that despite its shortcomings there is sufficient specificity in the notice and that the applicant is entitled to request documents that relate to the four specific events of some moment during her employment and in respect to which reprisal actions might be associated.  I refer to her public interest disclosure, her commencement of legal proceedings, her probation review and her termination

 Fishing Expedition

  1. [64]
    Consistent with the respondents' submissions about lack of particularity, the respondents submitted that the applicant had failed to explain how the documents sought would support her case and that it could be deduced from the casting of the categories of documents sought in very broad terms, that the applicant did not know what material was held by the CCC. Consequently, the notice was to be seen as an attempt by the applicant, not to obtain documents about which she had some specific knowledge, but rather to obtain documents for the purpose of assessing whether in fact they might assist her case. Consistent with Shaw v Yaranova[10], there was no legitimate forensic purpose in such an approach:

There will be no legitimate forensic purpose if, 'all the party is doing is trying to get hold of the documents to see whether they may assist him in his case'.  The court must both be satisfied that the documents are relevant to an issue and that there will be something in the material then before the court that makes it appear likely that the documents will materially assist the applicant. 

  1. [65]
    It followed that the notice is to be regarded as a fishing exercise and an abuse of process, a conclusion said to be supported on the authority of NSW Crime Commission v Hawes[11] in which the prohibition on "fishing" was dealt with as follows:

In Associated Dominions Assurance Society Pty Ltd v.  John Fairfax & Sons Pty Ltd (1952) 72 WN 250, Owen J, with whose judgment the other members of the Full Court agreed, said (at 254):

'A fishing expedition' in the sense in which the phrase has been used in the law, means, as I  understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.'

I have formed the conclusion that the issue of the subpoena in the present case should be characterised as a fishing expedition.  Mr Hawes not knowing what is in the production orders or in the documents produced under the production orders and not knowing whether there is anything in those documents which is reasonably likely to add in the end, in some way or other, to the relevant evidence in the proceedings desires to be allowed to drag the pool consisting of the documents for the purpose of finding out whether there is anything of that description. 

  1. [66]
    In circumstances where it is not in dispute that neither the applicant nor any of the parties to the proceedings know what documents have been produced by the CCC, and that on one perspective it could not be known whether any of the material will help or hinder the applicant in the prosecution of her substantive application, the notice could, prima facie, attract the characterisation of a fishing expedition.
  1. [67]
    Notwithstanding this, it is also true that the CCC has responded to the notice without complaint and has produced documents to the commission which it can be fairly concluded are relevant to some extent or other to the substantive proceedings. The CCC is intimately familiar with the complaint made by the applicant and has commenced an investigation in response to the complaint. The CCC says, which I accept, that common issues are to be found in the substantive proceedings and in the CCC investigation.
  1. [68]
    These considerations lead me to believe that it was not unreasonable for the applicant to hold an expectation that the documents sought by the notice would include documents that would enhance her case, and any lack of precision in the category description, does not warrant any amendment to the notice.

Relevance

  1. [69]
    Relevance is to be determined by reference to the categories of documents sought to be produced and to the matters in issue in the substantive proceedings. 
  1. [70]
    In summarised form, the first category of documents requested was described in the notice as documents evidencing communication or collaboration between the Second respondent and the Third to Ninth respondents, in relation to matters involving the applicant and her employment.  The second category of documents was described as documents of the Second respondent and/or documents of the Third to Ninth respondents in which discussion took place relating to the applicant's employment, probation, termination, or the applicant's public interest disclosure or commencement of legal proceedings. 
  1. [71]
    The applicant submitted that a document is "relevant" to a matter in issue if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary, or it is a document which may fairly lead to a train of enquiry which may have either of those consequences[12]. The applicant adopted the language used in Attorney-General for New South Wales v Stuart[13], in submitting that it was "on the cards" that the documents or material sought to be produced would materially assist her case.
  1. [72]
    Matters in issue were said to encompass the allegations of the applicant and denials or assertions made by the respondents. The denials went to issues of alignment and collaboration in relation to the decision to terminate the employment and in relation to adverse action taken against the applicant as a result of her public interest disclosure or the commencement of legal proceedings. The Third to Ninth respondents individually had made assertions to the effect that they either did not know the reasons of other respondents for deciding that the applicant's employment should be terminated, or that they did not discuss their decision with other respondents. The applicant had a right to test the denials and the related evidence of the respondents, including considerations of credit.
  1. [73]
    The respondents submitted that neither category of document sought by the notice was confined to the matters in issue in the substantive proceedings. In particular terms, the objections were:
  1. (a)
    that the request for documents evidencing communications was not limited to a central issue in the proceedings nor was it limited in time.  The matters in issue do not include any positive allegation on the part of the applicant to the effect that communications of the type sought to be produced, actually existed. The documents are sought despite the absence of any specific pleading that the type of communication occurred, and despite the absence of evidence of any such communications;  
  2. (b)
    that the production of documents relating simply to the applicant's employment extended well beyond the scope of the issues in the proceedings. No allegation has been made about the applicant's employment prior to 10 August 2017, while the allegations that are made concern specific conduct connected with the probation review in September/October 2017 and the termination in February 2018; and  
  3. (c)
    that the request for documents relating to the making of the public interest disclosure and to the commencement of legal proceedings lacked specificity and extended beyond the issues in the substantive proceedings.
  1. [74]
    It seems to me not unreasonable for the applicant to expect that decisions made in respect to her employment would involve communications between the natural person respondents and that such communications were relevant to the matters in issue. Consistent with what was said about lack of particularity, I agree that the applicant may not know whether the anticipated communications actually occurred. However, for the purposes of this matter that does not, in my view, preclude her from seeking to obtain communications on the premise that it is likely that such communications exist to some extent or other.
  1. [75]
    I am not prepared to amend the notice in relation to its lack of specificity around the relevant period of employment. It seems to me that given that the applicant's period of employment was very short, given that the central events were reasonably proximate in time to the start of the applicant's employment, and given that any probationary review could be expected to consider performance across the entire probationary period, it was reasonable for the notice to request documents relevant to the full term of the applicant's employment.
  1. [76]
    I am also content to leave the notice undisturbed in respect to documents relating to the making of the public interest disclosure and the commencement of legal proceedings. In circumstances where the applicant has alleged that reprisal activities were related to her public interest disclosure and to her decision to commence legal action, it is relevant for her to request documentation that might bear on these issues.
  1. [77]
    Finally, in so far as the rules allow, under either subdivision, the addressee of the notice to make application to set aside the notice on the ground that some or all of the requested documents are not relevant, the CCC has not made any such application and has rather disclosed a willingness to comply with the notice and raises no complaint about the scope of the notice.

TIA Act

  1. [78]
    The controversy about access also extended to material acquired by the CCC under the Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act). The transcript of proceedings on 11 July 2018 had disclosed that the material produced by the CCC included "lawfully intercepted information under the TIA Act".
  1. [79]
    The applicant resisted the respondents' objections to the use of telephone intercepts on the basis that the proceedings brought by the applicant was an exempt proceeding under the terms of s 5B(1)(f) of the TIA Act. It followed that the giving in evidence of the telecommunications intercept material in the subject proceedings was expressly authorised by s 74 of the TIA Act.
  1. [80]
    Despite these submissions however the applicant did not press for the inspection or copying of the intercept material because it said that s 74 of the TIA Act did not expressly authorise the provision of such material to the applicant. This however did not provide grounds to set aside the notice, rather it surfaced an argument for another day in the event that the applicant wanted to press its claim for access. The resolution of that issue was a matter for the substantive proceedings.
  1. [81]
    The respondents did not concede that the proceedings were an "exempt proceedings" for the purposes of the TIA Act. In the respondents' view, the relevance or admissibility of telephone intercepts should be matter for the substantive proceedings in which evidence would be required to be called and audio recordings listened to and validated. The preferred approach was that the part of the notice relevant to the production of telephone intercepts should be set aside and leave reserved for the applicant to seek the introduction of the material at a later date.
  1. [82]
    I accept the respondents' position to the extent that access to transcripts or audio recordings, and applications in respect thereto, should be a matter for submissions in the substantive proceedings.

 Legal Professional Privilege

  1. [83]
    The respondents noted that documents requested which related to the commencement of legal proceedings were likely to include communications which are subject to a valid claim of legal professional privilege.  In the respondents' view, the notice should be aside, at least to this extent.
  1. [84]
    The applicant accepted that while a valid claim to legal professional privilege in respect to a particular document warranted the exclusion of the document, the existence of a claim to privilege did not support propositions that the notice should be set aside.
  1. [85]
    Rather, the issue was one to be resolved in the substantive proceedings. When privilege is claimed, it is for the commission to determine if the claim is valid.  In this regard, privilege will only exist where it satisfies the test for legal professional privilege enunciated in Jibson v Q-Comp[14], and where privilege has not been waived.
  1. [86]
    I accept the applicant's perspective on this issue. 

 Self-Incrimination Privilege

  1. [87]
    Section 197(2) of the CC Act provides that, subject to s 197(1) of the CC Act, answers documents, things or statements given or produced under compulsion, are not admissible in evidence against the individual in any civil, criminal or administrative proceeding.  Section 197(1) provides in effect that for s 197(2) to apply, the individual must have claimed self-incrimination privilege before answering a question or producing a document or thing or a written statement of information.  
  1. [88]
    While it was not generally known whether, and how often, privilege had been claimed by any of the respondents in their interviews by the CCC, information included in a decision of Industrial Commissioner Thompson on 25 July 2018[15] disclosed that claims of self-incrimination privilege had been preserved pursuant to s 197(5) of the CC Act which provides:
  1. (5)
    In a commission hearing, the presiding officer may order that all answers or a class of answer given by an individual or that all documents or things or a class of document or thing produced by an individual is to be regarded as having been given or produced on objection by the individual.
  1. [89]
    The relevant information was disclosed at paragraph 116 of the decision where a reference was made to a covering letter accompanying the documents produced by the CCC to the Industrial Registry: 

Further advice from the CCC included references to restrictions relating to the material pursuant to s 197 of CCA:

In relation to the third category of documents produced (transcripts), the transcribed proceedings include evidence given by various of the Respondents in PID/2017/3.  That evidence was given under orders restricting the use which can be made of that evidence (pursuant to s 197 of the Crime and Corruption Act 2001).  Section 197(2) of the Act provides that an answer, document, thing or statement is not admissible in evidence against the individual in a civil criminal or administrative proceeding.  I raise this as it may have some impact on the future use which may be made of the information produced, although the question of admissibility is one for the Commission, and it does not bear on the production of the information under the Notice. 

  1. [90]
    Prima facie therefore, some of the material produced by the CCC is inadmissible in the substantive proceedings pursuant to s 197(2) of the CC Act.  How much of the material produced was obtained under compulsion was a question put to the CCC by the Second respondent's lawyers on 10 July 2018.  In response, the CCC advised that "the majority of documents produced were obtained under compulsion".  It follows that the majority of the documents produced by the CCC will attract the protection afforded by s 197(2) of the CC Act.  

Waiver

  1. [91]
    The applicant submitted that claims of self-incrimination privilege were not to be resolved globally, but required determinations to be made in the substantive proceedings in respect to questions with the relevant tendency or in respect to particular documents sought to be tendered. The applicant said that the determinations to be made will include a consideration of whether the individual respondent has already waived the privilege in respect to matters alleged against him or her through the filing of positive responses to the applicant's allegations. 
  1. [92]
    In Sogelease Australia Ltd[16], Palmer J discussed the rule against blanket objections in the following terms:

17    Mr Lindsay's proposition that a "blanket objection" cannot be taken on the ground of privilege against self incrimination is correct as a general rule: see e.g. Spokes v Grosvenor Hotel Co [1897] 2 QB 124, at 132-133; C v National Crime Authority (1987) 78 ALR 338, at 343. But the rule is general, not immutable. Its rationale is to prevent persons from abusing the privilege by invoking it too readily to avoid making disclosures which may well be prejudicial but do not really have a tendency to incriminate. Thus, it is usual to require the privilege to be claimed separately for each disclosure so that the Court may see for itself that the claim is justified.

18 However, there may be cases in which the Court can readily see from the surrounding circumstances that all disclosures within a certain area of enquiry are likely to have a tendency to incriminate. In such a case, there is no point in requiring the person claiming the privilege to perform the tedious ritual of objecting separately to all the questions asked or all the disclosures sought: the Court will permit and uphold a blanket objection: see e.g. Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412, at 423 per Kirby P.

  1. [93]
    In circumstances where the CCC has elected to invoke s 197(5) of the CC Act, it may be open to conclude that any reference in the substantive proceedings to answers given or documents obtained under compulsion might disclose a tendency toward self-incrimination. In these circumstances it may be open to conclude that the qualification expressed in Sogelease may be applicable in these proceedings. 
  1. [94]
    Evidence of a positive case of rebuttal was said to be found in the content of affidavits already filed by the Third to Ninth respondents in the interlocutory stages of the substantive proceedings.  In these affidavits, these respondents were said to have positively addressed a range of issues concerning the applicant's employment, the actions the applicant alleges were taken against her, their reasons for taking particular action and concerning the extent to which they liaised with and/or acted at the request of other persons.  These responses were summarised in paragraph 23 of the further amended application. 
  1. [95]
    Relying on Clayton Utz (A Firm) v Dale[17], the applicant submitted that where a party elects to conduct a positive case in rebuttal of allegations made against him or her, the party will have acted inconsistently with the privilege, and the privilege will be impliedly waived with respect to the issues canvassed in the positive case.  While the affidavits had been read in the interlocutory proceeding, the applicant maintained that the Third to Ninth respondents intended to rely on the same material in the substantive proceedings.  
  1. [96]
    It followed that the restriction referred to in s 197(2) of the CC Act will not apply to answers, documents, things or statements disclosed or produced under compulsion to the CCC which relate to issues in the substantive proceeding in respect of which privilege against self-incrimination has already been waived. Therefore, the individual respondents may have little if any capacity to claim self-incrimination privilege in the substantive proceedings and any restriction imposed by s 197(2) of the CC Act cannot be relied on as a basis to set aside the notice. 
  1. [97]
    The respondents contested the applicant's submissions on two grounds. Firstly, the respondents did not accept that evidence read in interlocutory proceedings could be relied on by the applicant. While affidavits may have been read in interlocutory proceedings, they have not as yet been read as evidence in the final proceedings, and no positive case has yet been advanced because the applicant has not yet concluded her case.  This position was demonstrated by reference to the Further Directions Order issued in relation to the substantive proceedings on 27 July 2018 which provided, inter alia, that the respondents by a particular future date, were required to file and serve "affidavits on which they intend to rely at trial".
  1. [98]
    Secondly, it was submitted that had even there had been a limited waiver of any of the privileges in this case, such a waiver would not operate for all purposes and that it could not mean that any of the natural person respondents could be required in the substantive proceedings to answer questions about matters obtained under compulsion in circumstances where the answer would tend to incriminate.
  1. [99]
    The reasoning of Finkelstein J in Australian Securities Commission v Mining Projects Group Limited[18] suggested that circumstances associated with claimed waivers of self-incrimination privilege were not without complexity:

23There is some suggestion locally that these cases have gone much too far. In Accident Insurance 31 NSWLR 412, Clarke JA doubted there could be an implied waiver of self incrimination privilege. Although he declined to provide a definitive view, he said (at 432) that “[i]n principle it would seem to me that [the making of earlier statements] could not constitute a waiver of a right to decline to provide self-incriminating answers to questions put during the course of a trial. If it were otherwise it would… constitute an enormous infringement of an ancient and fundamental right of all citizens.” In my respectful opinion this view accords more closely with the rationale for self-incrimination privilege.

24On the question of waiver, ASIC contends that the directors have waived each privilege by providing information in their respective defences which they were not obliged to provide. It may be accepted, indeed it was not disputed, that the directors have waived each privilege as regards the admitted and asserted “facts”. But, in my opinion, the waiver is confined to what appears in the defences. First of all, what is conceded in each defence is not that the “facts” asserted or admitted are true “facts”. The defences do no more than relieve ASIC of the need to prove those “facts”. Second, there was no intention to waive privilege beyond what appears in each defence. The prefatory qualification makes each director’s intention clear. Third, at least as regards self-incrimination privilege, I do not accept that it can be waived by the mere admission of some facts (other than, of course, the admitted facts). In Accident Insurance 31 NSWLR 412, Clark JA said that a defendant making a statement before trial could not constitute a waiver of a right to decline to answer questions put to him during the trial. He explained (at 432) that if “it were otherwise it would mean that persons who had made admissions to police could be taken to have waived the right to remain silent.” With respect, I agree with Clarke JA, subject to one qualification. A person who has made a statement before trial can be compelled to repeat that statement in court: Craven 102 ALR 668, 685-686. Putting the qualification aside, in my opinion a defendant who admits a particular fact in his defence does not thereby waive his right to claim the privilege for all other facts. That is to say, the waiver goes no further than what has been admitted or asserted: Accident Insurance 31 NSWLR 412, 424.

  1. [100]
    Without deciding the issue, if the applicant were right in her submissions on waiver, the applications to set aside the notice could not be sustained by reference to self-incrimination privilege claimed pursuant to s 197 of the CC Act, and the fate of the notice would therefore be decided by the resolution of the following questions:
  1. (a)
    whether the CC Act expressly or impliedly authorises the dissemination of material obtained under compulsion for use in collateral civil proceedings; and
  2. (b)
    whether there is an implied limitation on the use of such material including a prohibition on the derivative use of the material.  

 Statutory Authorisation

  1. [101]
    The respondents rejected the proposition that the dissemination of the material obtained under compulsion was authorised by the CC Act. More particularly, neither s 62 nor s 60 of the CC Act expressly or impliedly authorised the production of documents by the CCC for use in the subject proceedings. Section 60 of the CC Act (Commission may give evidence or information to other entities) provides:
  1. (1)
    The commission may give evidence of, or information about, a possible offence against a law of the State, the Commonwealth or another State to an entity or a law enforcement agency the commission considers appropriate.
  1. (2)
    Also, the commission may give information coming to its knowledge, including by way of a complaint, to a unit of public administration if the commission considers that the unit has a proper interest in the information for the performance of its functions.

Example— 

     The commission may consider that information in the commission's possession should be given to the auditor-general or the ombudsman for consideration in the performance of the entity's functions.

  1. (3)
    Subsection (1) does not limit anyone's right to start a prosecution for an offence.
  1. (4)
    This section is subject to section 62.
  1. [102]
    Section 62 of the CC Act (Restriction on access) states:
  1. (1)
    Any information, document or thing in the commission's possession may be used and dealt with in performing the commission's functions, but otherwise must not be given to or made available for inspection by any person without the commission's express written authorisation.
  1. (2)
    Subsection (1) is subject to sections 293 and 317.
  1. [103]
    The construction to be placed on s 62 of the CC Act requires consideration of the CCC's functions, particularly its corruption functions, which are set out in Chapter 2 Part 3 of the CC Act. Pursuant to s 33 of the CC Act, the CCC's corruption functions are defined as:
  1. (a)
    to raise standards of integrity and conduct in units of public administration;
  1. (b)
    to ensure a complaint about, or information or matter involving, corruption is dealt with in an appropriate way, having regard to the principles set out in section 34.
  1. [104]
    Section 34 of the CC Act provides inter alia that the CCC, in performing its corruption functions, should work cooperatively with units of public administration to prevent and deal with corruption. Section 35 of the CC Act states that the CCC may perform its corruption functions in a number of ways including:
  1. (e)
    dealing with complaints about corrupt conduct, by itself or in cooperation with a unit of public administration;

 …

  1. (j)
    providing advice and recommendations to a unit of public administration about dealing with complaints about corruption in an appropriate way.
  1. [105]
    While it appeared that the applicant did not rely on s 60(2), the respondents were clear in advancing the case that neither s 60 nor s 62 of the CC Act could be read to provide any authorisation for the dissemination of documents held by the CCC to the applicant for use in the substantive proceedings.
  1. [106]
    The effect of s 60(2) of the CC Act is that it authorises the giving of information to the Queensland Industrial Relations Commission (QIRC) as a unit of public administration, if the CCC considered that the QIRC had a proper interest in such information for the performance of its functions. 
  1. [107]
    The respondents were clear in asserting that the QIRC did not have any proper interest in information obtained during the CCC's investigation for the performance of its functions.  The respondents submitted that, on any examination of the statutory functions of the CCC, s 60(2) could not be correctly construed to authorise the production of information to the QIRC. Further, none of the provisions of the CC Act dealing with the statutory functions of the CCC, and how those functions are performed, expressly or by necessary implication suggest that it is any part of the CCC's functions to assist private litigants in the conduct of civil proceedings.
  1. [108]
    As the respondents saw it, it was a misunderstanding of principle to assume that the QIRC had some function which is served by it being provided by the CCC with possession of documents which one of the parties asserts is relevant to one of the matters proceeding before it.  The QIRC has no function to be served by receiving the documents directly from the CCC.  Its function, in so far as the subject proceedings are concerned, is to exercise judicial power of the state of Queensland in respect of the claim brought by the applicant.  The QIRC has no investigatory or inquisitive role of its own in the current matter.  Nor does the QIRC have any legal interest in the particular outcome of the legal dispute, its only function being the resolution of the dispute brought before it.  The QIRC does not use those documents in any way, unless and until a party gains possession of them and tenders them into evidence.  The commission merely serves as a conduit for transfer of the documents to the parties.
  1. [109]
    The respondents also submitted that on its ordinary reading, s 60(2) cannot be said to authorise the production of documents in that "information" should not be construed to include "documents" or "evidence". While, s 60(1) authorises the giving of "evidence" or "information" to an entity or law enforcement agency, s 60(2) authorises the giving of only "information" to a unit of public administration. By way of additional contrast, s 62(1) refers differently to the giving of "information", "document" or "thing".  Having regard to the different choice of terms, and when read in context, s 60(2) does not authorise the production of documents.
  1. [110]
    It was further submitted that, if s 60(2) was to be construed to allow for the giving of information to the QIRC, such authorisation should not be considered to extend  to the giving of information obtained by compulsion, and subject to privilege pursuant to s 197(1), (2), and (5), to the parties engaged in private litigation.
  1. [111]
    The applicant submitted that s 62 of the CC Act was an express provision which provides for the circumstances in which any information, documents or things held by the CCC may be used and dealt with in performing the CCC's functions. 
  1. [112]
    The applicant said that, by s 33 of the CC Act, the CCC's functions include raising standards of integrity and conduct in units of public administration and ensuring that a complaint about, or information or matter involving, corruption is dealt with in an appropriate way. It followed that proceedings in which the applicant has made allegations of corrupt conduct and has alleged that she has been the subject of reprisal action for performing the functions of her office, should be seen to be compatible with the performance of the CCC's functions.
  1. [113]
    It was submitted that to the extent that the effect of s 62 of the CC Act was to impose conditions in relation to which information, documents or things may be used and dealt with by the CCC, these conditions have been satisfied because the provision of information in response to the applicant's notice is consistent with the CCC's functions under the terms of the CC Act. It was both a function of the CCC and the QIRC to deal with proceedings brought under s 48 of the PID Act in that the CCC had jurisdiction to commence such proceedings. It followed that both the applicant's proceedings and the production of documents to the QIRC in compliance with the notice must be seen to be consistent with the performance of the CCC's functions.
  1. [114]
    The respondents however warned against any such conclusion and submitted that there was no valid association between the QIRC proceedings and any criminal proceedings brought as a result of the CCC investigation. While the legal or factual issues in the substantive proceeding might be similar to the CCC's investigation, they should not be conflated as being for the same purpose.  It was submitted that the "CCC investigation is separate and distinct.  It does not rely upon the QIRC proceedings.  Equally so, the QIRC proceedings are proceedings commenced by a civil litigant, alleging amongst other things, breaches of the Industrial Relations Act 2016 (Qld).  Success in one proceeding does not result in, militate for or against, success in the other".
  1. [115]
    The respondents contested the proposition that authority for the dissemination of material to the QIRC resided in s 62 of the CC Act. By reference to the reasoning in Johns v Australian Securities Commission[19] it was submitted that a distinction was to be drawn between a provision which authorises the "means" by which information may be shared, and a provision which identifies the "purposes" for which information may be shared.   In this case, s 62 of the CC Act was said to be a provision dealing with means or process, while s 60 of the CC Act dealt with the purposes for which information may be shared. In circumstances where s 60 of the CC Act cannot be relied on to support the applicant's position, s 62 of the CC Act cannot be used to authorise the disclosure of the information.  
  1. [116]
    The applicant maintained that s 62 of the CC Act should be construed differently and did not accept that s 62 served only a procedural function. Firstly, s 62 of the CC Act was an express provision which provides for the circumstances in which any information, documents or things held by the CCC may be used and dealt with in performing the CCC's functions. Secondly, the use of the words "otherwise must not be given to or made available for inspection", makes it plain that information, documents or things may be given or disclosed in the performance of the CCC's functions. Thirdly, the effect of s 62 of the CC Act is to impose conditions in relation to which information, documents or things may be used and dealt with. In this matter, these conditions have been satisfied because the provision of information in response to the applicant's notice is consistent with the CCC's functions under the terms of the CC Act.
  1. [117]
    While the applicant's submissions may be persuasive to the extent that the production of material to the QIRC in compliance with the applicant's notice should not be regarded as a function foreign to the statutory functions of the CCC, I am reluctant to accept that outcome in circumstances where s 60(2) which expressly confers authority to give material to units of public administration does not authorise the production of the material in the specific circumstances relevant to this matter. In short, if s 60(2) does not authorise the giving of material to the QIRC, I doubt that s 62(1) could have that effect.

Implied Limitation

  1. [118]
    The effect of the respondents' case was that (i) the case law supported a conclusion that there was an implied probation against the use of material obtained by compulsion in collateral civil proceedings; and (ii) the case law supported the proposition that the derivative use of such material was prohibited, and could not be made available to the applicant for use in the substantive proceedings.
  1. [119]
    The starting point for the respondents was the common law principle supporting the proposition that information obtained under compulsion must only by used for the purpose for which it was obtained. In R v Leach, the Court of Appeal included references in its decision to the judgment of the High Court in Lee. In one such reference the High Court stated:

It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which s 13(9) of the NSWCC Act sought to protect. Rather, their trial was one where the balance of power shifted to the prosecution."

  1. [120]
    The Court of Appeal's reasoning in R v Leach, also included the following statements:

"Consistently with the decisions of the High Court in X7 and Lee (2014), the decision of the New South Wales Court of Criminal Appeal in Seller and the decision of the Full Court of the Federal Court in De Vonk, the disclosure to the DPP of the evidence given under compulsion in this case, and its subsequent use by the DPP to prepare for the appellant's prosecution and its admission as evidence at the appellant's trial, conflicted with the 'fundamental principle of the common law' that the onus of proof rests on the prosecution and conflicts with its “companion principle” that the prosecution cannot compel an accused to assist it.

 …

… It must not be forgotten that what is required in this case is a manifestation in the text of the statute of an intention to create a unique regime for tax related prosecutions. According to such a regime the Commissioner of Taxation could interrogate a taxpayer, who has no right to refuse to answer questions on the ground that the answers might tend to incriminate and, indeed, would be under express threat of prosecution for any refusal to answer or for giving any false answers; and he could then deliver the evidence extracted in that way to the DPP so that the information could be used to consider whether to prosecute the examinee, to formulate charges, to anticipate defences and ultimately to use as evidence to incriminate the accused person.

  1. [121]
    The relevant principles were also evident in Deputy Commissioner of Taxation v De Vonk[20] and other authorities, In De Vonk, Hill and Lindren JJ held (at 578):

Section 264, unlike its companion section s 263, does not expressly qualify the power conferred upon the Commissioner as being exercisable only for the purposes of the Act.  None the less it may readily be accepted that where a coercive power such as s 264 has been conferred, that power may only be exercised bona fide for the purpose for which it was conferred (cf O'Reilly v E Commissioners o/the State Bank o/Victoria (1983) 153 CLR I at 48). 

  1. [122]
    The proposition in De Vonk was expanded on in Williams v Keelty[21] where Hely J's reasoning suggested that the limitation mentioned in De Vonk extended to evidence in civil proceedings:

If entry is gained to premises by means of the compelling nature of a search warrant, and documents are seized, in my view it would be consistent with general principle to hold that it would be improper for documents seized pursuant to the warrant to be used for any purposes outside those comprehended by the warrant

…

If AFP or ASIC sought to use the documents seized for a purpose other than the purposes contemplated by the warrant, such as, for example, as evidence in the civil proceedings, then that would be an abuse of power on their part, which, consistently with Grollo v Macauley and Donnelly v Amalgamated Television Services, could be restrained by injunction. 

  1. [123]
    The principles enunciated in De Vonk and Williams v Keelty were adopted and further considered by Atkinson J in Flori v Commissioner of Police[22]. The respondents considered that her Honour's judgment stood as authority for the proposition that a statutory provision authorising the obtaining of material under compulsion is subject to an implied limitation in respect to the purposes for which such material may be used.
  1. [124]
    In her judgement, her Honour reiterated the principle that where "information or material is obtained under compulsion authorised by statute, the use that can be made of that information or material is limited by the statute".  Her Honour then turned her consideration to "the related topic of dissemination or release of information obtained under compulsion". In this regard she relied on the following reasoning of Brennan J (with whom Dawson, Gaudron and McHigh JJ agreed) in Johns v ASIC:

… when a power to require disclosure of information is conferred for a particular purpose, the extent of dissemination or use of the information disclosed must itself be limited by the purpose for which the power was conferred.  In other words, the purpose for which a power to require disclosure of information is conferred limits the purpose for which the information disclosed can lawfully be disseminated or used.  In Marcel v Commissioner of Police of the Metropolis Sir Nicholas Browne-Wilkinson V.C. said, in reference to a statutory power conferred on police to seize documents:

'Powers conferred for one purpose cannot be lawfully be used for other purposes without giving rise to an abuse of power.  Hence, in the absence of express provision, the Act cannot be taken to have authorised the use and disclosure of seized documents for purposes other than police purposes.'

And in Morris v Director of the Serious Fraud Office, Sir Donald Nicholls V. C.  said in reference to information acquired by exercise of statutory powers:

'The compulsory powers of investigation exist to facilitate the discharge by the SFO of its statutory investigative functions. The powers conferred to section 2 are exercisable only for the purposes of an investigation under section 1. When information is obtained in exercise of those powers the SFO may use the information for those purposes and purposes reasonably incidental thereto and such other purposes as may be authorised by statute, but not otherwise.   Compulsory powers are not to be regarded as encroaching more upon the rights of individuals than is fairly and reasonably necessary to achieve the purpose for which the powers were created. That is to be taken as the intention of Parliament, unless the contrary is clearly apparent.'

A statute which confers a power to obtain information for a purpose defines, expressly or impliedly, the purpose for which the information when obtained can be used or disclosed.  The statute imposes on the person who obtains information in exercise of the power a duty not to disclose the information obtained except for that purpose.  If it were otherwise, the definition of the particular purpose would impose no limit on the use or disclosure of the information.  

  1. [125]
    It followed from the respondents' perspective that, absent any express provision to the contrary, material obtained by the CCC under compulsion cannot be used in collateral civil proceedings, such as the applicant's substantive proceedings. While the respondents maintained that the CC Act contained no such express provisions, the applicant had a different view on the matter.
  1. [126]
    The applicant submitted that sections 60, 62, and 197 of the CC Act were express provisions which preserved the right to claim privilege against self-incrimination in other proceedings and established the conditions under which material held by the CCC may be disseminated. The inclusion of these provisions distinguished the current matter from the authorities relied on by the respondents.
  1. [127]
    Other grounds were also advanced by the applicant in support of the view that the respondents' authorities were to be distinguished. The applicant submitted that:
  1. (a)
    the authorities relied on by the respondents do not establish a general principle that documents obtained by a statutory power must only be used for the purpose for which they were obtained;
  1. (b)
    Johns v ASIC and Williams v Keelty were also authority for the proposition that "information obtained in exercise of powers under an Act may be used for purposes permitted by that Act";
  1. (c)
    in none of the authorities, did the persons opposing the use of the information present a positive case;
  1. (d)
    the cases turn on the particular terms of the relevant statute under which the information sought by compulsion was obtained;
  1. (e)
    none of the statutes contained provisions similar to s 197 of the CC Act, and none contained a provisions that were in the same terms as s 62 of the CC Act; and
  1. (f)
    the statements in Deputy Commissioner of Taxation v De Vonk are distinguishable from the present matter as they deal with situations where the coercive power was not exercised for the purposes of the Act under which it was conferred. There is no suggestion that the exercise of the power by the CCC to obtain the information in issue was exercised other than for the purposes of the CC Act. 
  1. [128]
    In dealing with Flori v Commissioner for Police in particular, the applicant submitted that the question arising from the reasoning in this decision was whether an implied limitation emerges out of the structure and purposes of the CC Act to the effect that the material obtained by the CCC by use of its coercive powers cannot be used in the substantive proceedings. In the applicants' submission, this question was to be answered in the negative in circumstances where s 62(1) of the CC Act expressly provided for the circumstances in which material held by the CCC may be disseminated, and where the subsection authorised the giving of the material to the QIRC in compliance with the applicant's notice
  1. [129]
    The respondents however argued that there was no express authorisation for the dissemination of the material and that, consistent with the reasoning in R v Leach[23], a limitation was implied to the effect that the derivative use of material obtained under compulsion was prohibited and the material sought to be accessed by the applicant for use by her in the substantive proceedings was not available to her. In R v Leach, the Court of Appeal, in alluding to considerations giving rise to the issue of statutory interpretation raised by the appeal, stated in referring to s 353-10 of the Taxation Administration Act 1953 (Cth), that:

The question is whether the legislation implicitly authorises the disclosure to and use by the DPP of the content of a s 353-10 examination for the purpose of a consideration of charges against the examinee, for the purpose of the formulation of such charges, for use in the preparation of the prosecution case in relation to such charges and as evidence at a criminal trial to prove the guilt of the examinee.

  1. [130]
    The Court of Appeal subsequently answered the question in the following terms (paragraph 89):

"Unlike the considerations involved in considering the abrogation of self-incrimination privilege, it cannot be said, either from any textual indications or from any impingement upon the utility of the statutory power, that authority to use the evidence in the way in which it was used in this case was necessarily implied by the terms of the statute. The respondent did not submit that the purposes of the Act would be frustrated to any degree if evidence could not be disclosed or used in the way it was disclosed and used in this case."

  1. [131]
    The respondents also claimed that if any disclosure was allowed, a fair hearing of the applicant's substantive case would be prejudiced.
  1. [132]
    The applicant maintained that R v Leach did not establish that the derivative use of the material produced by the CCC is prohibited, and that such material could not be produced to the likes of a prosecutor, or used by a witness in the preparation of the prosecutor's case.  Leach was distinguished on the basis that it turned on different facts and legislation to that relevant to the current proceedings, and that, unlike the current matter, Leach called no evidence in his trial, and at no time did he waive his privilege against self-incrimination.
  1. [133]
    In terms of legislative difference, it was considered significant that Leach did not have an equivalent of s 197 of the CC Act. It was submitted that s 197 provides for the circumstances in which the use of answers, documents, things or statements disclosed or produced under compulsion is restricted. If, as here, it does not apply there is no restriction. If the answer, document, thing or statement given or produced is, by s 197 not inadmissible in evidence against the individual in this proceeding, then sensibly there can be no prohibition on its derivative use in this proceeding.

Abuse of Process

  1. [134]
    The respondents also asserted, in relying on the reasoning of Gibbs CJ in Pioneer Concrete Pty Ltd v Trade Practices Commission[24] that it would likely be an abuse of process for the CCC to voluntarily provide information obtained by the exercise of coercive powers to a party to private litigation which was in progress at the same time.
  1. [135]
    Section 155 of the Trade Practices Act (TPA) confers power on the Trade Practices Commission in defined circumstances to serve a notice in writing on a person requiring him to furnish information, produce documents, or appear before the Trade Practices Commission to give evidence. It was an offence to refuse or fail to comply with the notice. While the right to claim privilege of self-incrimination was abrogated, any answer or document provided under compulsion was not admissible in evidence against the person in any criminal proceedings other than a proceeding brought under the TPA. In his reasoning, Gibbs CJ considered whether the power given by s 155 of the TPA might permit interference in pending judicial proceedings:

The second argument submitted on behalf of the appellants is that the power given by s. 155 permits interference with pending judicial proceedings. No doubt it is right to say that the power conferred by the section might in some cases be used so as improperly to interfere with judicial proceedings. I incline to think that if the power were used to assist a party in proceedings already pending, in a way that would give such a party advantages which the rules of procedure would otherwise deny him, there would be a contempt of court.

…

It is unnecessary to decide whether the applicant in the proceedings which allege a contravention of s 45 of the Act could obtain from the Commission and put in evidence information and documents obtained by the Commission under s 155. Certainly it would seem an abuse of the power given by s. 155 for the Commission to use material obtained under that section for a collateral or ulterior purpose (cf. Home Office v. Harman (23)) as by voluntarily communicating it to a litigant in proceedings to which the Commission was not a party. It is possible that such a litigant might learn, from sources other than the Commission, that the Commission had the material and might then issue a subpoena duces tecum to the Commission, but the speculative possibility that some such thing may occur is not enough to justify the Court in holding that the exercise of the power under s. 155 is a contempt.

  1. [136]
    The respondent submitted that while the High Court did not determine the question of the use to which documents obtained by compulsion might be used by a private party, the dicta of Gibbs CJ in respect of the voluntary nature of any communication between the regulator and a private litigant are relevant in circumstances where the CCC has admitted that while it was able to refuse compliance with the attendance notice pursuant to s 213(4) of the CC Act, it had decided not to do so. It was open to conclude in these circumstances that a voluntary decision to produce information involved an abuse of power.
  1. [137]
    The applicant resisted any such proposition for a number of reasons.  Firstly, there can be no abuse in circumstances where the CCC was authorised by the CC Act (ss 62 and 197) to produce the documents or material. Secondly, in Pioneer Concrete, the statements made by Gibbs CJ were made in a context where it was alleged that the agency involved had an ulterior motive at the outset in exercising its coercive powers. There is no such suggestion of that in the present case. Thirdly, the CCC has not "voluntarily communicated" the material to the applicant. Once the CCC decided not to invoke s 213(4) of the CC Act, it was required to comply with the notice. Complying with the notice in these circumstances does not amount to a "voluntary communication" as contemplated in Pioneer Concrete.
  1. [138]
    It might be reasonable to conclude that the dicta of Gibbs CJ lends support for the proposition that it would be improper or unfair to arm the applicant with material obtained under compulsion for use in the substantive proceedings. But the dicta does not fairly lead to a conclusion that there has been an abuse of power on the part of the CCC in complying with the applicant's notice and producing documents to the QIRC.

Fair Trial

  1. [139]
    The respondents pointed out that remedies sought by the applicant in the substantive proceedings included the imposition on the respondents of pecuniary penalties. That factor entitled the individual respondents to claim the privilege from self-exposure to a penalty.  One of the effects of those claims is that applicant has to prove her case without assistance from the natural person respondents. 
  2. [140]
    It was submitted that if s 62 of the CC Act was given the broad operation asserted by the applicant, there would be a necessary and consequential effect that the respondents' privilege against self-exposure to a penalty would be abrogated. This consequence would flow because the applicant would have access to documents where the respondents had been compelled to answer questions, and the applicant would be able to use those answers to assist in the prosecution of her case.
  1. [141]
    Consistent with Potter v Minaham[25], if Parliament had intended that s 62 of the CC Act was to be used to abrogate the privilege against self-incrimination or self-exposure to penalty, it would have said so expressly:

It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used. 

  1. [142]
    The respondents argued that it was inconsistent with any functions of the CCC, as disclosed by a review of the CC Act, for the CCC to provide a party to civil proceedings with a forensic advantage. On any proper construction, the CC Act could not permit inadmissible material obtained under compulsion to be used to assist the applicant in the conduct of her case. If allowed it would result in a breach of the usual rules of justice and would distort the fair conduct of the litigation. These views were supported in R v Leach where the Court of Appeal in referring to a judgment of the High Court in Lee stated at [68] that:

As appears from these passages, the crucial factor in the case was that the provision to the prosecutor of an accused's evidence, obtained under compulsion and without the protection of any privilege against self-incrimination, was a departure in a fundamental respect from the requirements of a fair trial. The significance of this deviation was a fortiori because of the effect of s 13(9) but its effect did not depend upon the existence of that provision.

  1. [143]
    Further, it should be considered an abuse of process for the applicant to use an attendance notice addressed to the CCC to access material that would otherwise not be obtainable by a civil litigant, for the purpose of securing an advantage not available to her under the rules of the commission. In proceeding as she has, the applicant seeks to take personal advantage of the CCC's power to abrogate privilege and compel the production of materials. Such an approach was considered by the respondents to be manifestly unfair.
  1. [144]
    I accept that the giving to the applicant of unrestricted access to material obtained under compulsion would distort the substantive proceedings and unfairly assist the applicant in the prosecution of her case.

Conclusion

  1. [145]
    Both R v Leach and Flori are authority for the proposition that material obtained under compulsion cannot be used in collateral civil proceedings. In Flori, Atkinson J said that the issue for determination was whether (paragraph 24): 

… the evidence which was seized under the search warrant issued by Magistrate Thacker for police to obtain evidence of the commission of a criminal offence by a police officer can be used in disciplinary proceedings against that police officer not based on conviction for that offence.

  1. [146]
    During the course of her judgment Justice Atkinson, in referring to the judgment of the Full Court of the Federal Court in Grollo v Macauley[26], stated that it was (paragraph 31) "… implicit in the court's reasoning that use of the information obtained by the search warrants in the pending civil proceedings would have been improper." Justice Atkinson then cited with approval from the reasoning of the Full Court (paragraph 32):

If entry is gained to premises by means of the compelling nature of a search warrant, and documents are seized, in my view it would be consistent with general principle to hold that it would be improper for documents seized pursuant to the warrant to be used for any purposes outside those comprehended by the warrant.

  1. [147]
    Justice Atkinson also referred (paragraph 34) to the judgement of Full Court of the Federal Court in Hart v Australian Federal Police[27] where the observation was made that "the purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them." However, Justice Atkinson then endorsed the view of Austin J in ASIC v Rich[28] when he said that: 

All of this falls well short of an express prohibition on any use of the seized things, by the executing officer …, for the purposes other than the investigation and prosecution of criminal offences to which the seized things relate.

  1. [148]
    What emerged from these considerations was the question of whether "such a limitation could be implied from the statutory scheme". In this regard, Atkinson J endorsed the reasoning of Austin J in support of his finding that a limitation was implied: 

It appears from the cases that the search warrant materials cannot be used for a later civil proceeding even if those materials have been used for the purposes of a single investigation with criminal and civil elements, prior to the commencement of the civil proceedings.

This entails that if a regulatory agency has used search warrant materials during the course of an investigation, and decides to initiate a civil proceeding, care will need to be taken not to use, for evidentiary purposes or otherwise in connection with the civil proceeding, any of the search warrant materials … .

  1. [149]
    Austin J had summarised his conclusions in the following terms:  

[305]The constraint upon use of the seized materials as evidence in a civil proceeding is not itself an express statutory constraint. It is, as I have shown, an implied limitation emerging out of the structure and purposes of the search warrant legislation, combined with the general proposition that if a power is conferred for a particular purpose it is limited by the purpose for which the power is conferred. Williams v Keelty and the Marshall Bell Hawkins case drew from this general proposition the more particular conclusion that seized materials could not be used as evidence in civil litigation. But it was not necessary for the judge in either case to consider whether that proposition was subject to a qualification that would permit the owner of the seized documents freely to consent to their prospective use in proposed civil litigation from which the owner would benefit.

  1. [150]
    In R v Leach, the Court of Appeal reviewed the judgment of the NSW Court of Criminal Appeal in R v Seller & McCarthy[29] where transcripts of a person's evidence obtained under compulsion were read by the Director of Public Prosecutions and a witness for the DPP who used the transcript to assist preparation of his own evidence. The trial judge had concluded that "there having been indirect and derivative use of the material by the DPP and there having been assistance to one of the proposed witnesses (Mr Tang) by his use of the material, a permanent stay of proceedings ought be granted".  The DPP successfully appealed, and during the course of the appeal submitted that because the statute did not afford immunity against the derivative use of the evidence there could never be an occasion to stay a proceeding on the ground that the fair trial of the charges had been prejudiced merely because the DPP had had access to the materials. This submission was however rejected and the appeal allowed on other grounds.
  1. [151]
    The Court of Appeal identified three points as emerging from the judgment in the R v Seller & McCarthy case (paragraphs 57 to 60): 

First, evidence obtained by means of a statutory power to compel the giving of answers, under a statute that abrogates the privilege against self-incrimination, from a person who has not been charged, and which is evidence that, upon the person's being charged, would disclose defences or explanations of transactions by the accused which he or she may raise at a trial, and possibly evidence or information that would tend to show that documents or transactions, apparently regular on their face, in fact tend to support the charges, ought not be disclosed to a prosecutor and cannot be used by a prosecutor against the examinee.

Second, the reason why such material ought not be disclosed is that its use would contravene what Hayne, Bell and Kiefel JJ were later to identify in X7 as the "fundamental principle".

Third, while in X7 and in Seller the Act expressly prohibited the use of the material as evidence, it was the common law which prohibited use of the material at all by the prosecutor.

  1. [152]
    The authorities in my view provide clear guidance to the effect that the applicant in her substantive proceedings is precluded from accessing and using material obtained by the CCC under compulsion.
  1. [153]
    It is also clear that any access on the part of the applicant to such material would likely prejudice the prospects of a fair trial and may lead to interference in the administration of justice. I also accept that if the applicant were given access to the material produced, notwithstanding the undertakings provided by the applicant's lawyers about access, there is a significant prospect that material which is inadmissible and/or subject to restrictions on its use or publication by the CCC, might find its way into evidence, a decision of the commission, or the public domain.
  1. [154]
    The factual and legislative differences relied on by the applicant to distinguish the current matter from the authorities put forward by the respondent do not, in my view, lead to a conclusion that the fundamental principles enunciated in the case law should be set aside. In particular, I do not accept that a reading of either s 60 or s 62 of the CC Act, either expressly or impliedly, support a construction that the CC Act authorises the derivative or indirect use by the applicant of material obtained under compulsion. Nor do I accept that the inclusion of s 197 of the CC Act precludes a finding that a limitation on the use of material obtained by compulsion is to be implied into the CC Act.
  2. [155]
    I arrive at the following conclusions which support a decision to set aside the notice:
  1. (a)
    general legal principles and common law principles enunciated in Flori and R v Leach preclude the applicant's unrestricted access to materials and the use of materials obtained under compulsion;
  1. (b)
    having regard to such principles, I am satisfied that an implied limitation emerges out of the structure and purposes of the CC Act to the effect that material obtained by the CCC by use of its coercive powers cannot be used in the applicant's proceeding;
  1. (c)
    the implied limitation, consistent with the reasoning in Williams v Keelty, extends to a prohibition on the derivative use of the material, including use by the applicant in the preparation of her case;
  1. (d)
    if material obtained under compulsion cannot be disclosed to the applicant or to the applicant's lawyers, and cannot be used by the applicant in the substantive proceedings, and cannot be tendered into evidence, it can serve no legitimate forensic purpose and, save for a consideration of material other than material obtained by compulsion, the notice must be set aside;
  1. (e)
    the use by the applicant of material obtained under compulsion may jeopardise the fair conduct of the substantive proceedings and risk interfering with the administration of justice;
  1. (f)
    dissemination of material obtained under compulsion for use by the applicant in the substantive proceedings is not consistent with the performance of the CCC's functions; and
  1. (g)
    neither s 60(2) of the CC Act, nor s 62(1) of the CC Act expressly authorise the giving of information by the CCC to the QIRC for use by the applicant in the substantive proceedings.
  1. [156]
    In circumstances where it is known that the majority of the documents produced by the CCC were documents obtained under compulsion, where there is a disagreement about the use of other material produced resulting from telephone intercepts, and where valid claims of legal professional privilege are likely to be made in respect to some of the documents produced, there is a basis to conclude that there is little prospect that the great majority of the subpoenaed documents produced by the CCC will serve any legitimate forensic purpose.
  1. [157]
    It is not known if any documents had been handed over voluntarily by respondents to the CCC as part of the CCC investigation, and if so whether such documents have been produced. Whether documents handed over voluntarily were disclosable or had been disclosed under disclosure orders already made was difficult to determine. The applicant noted that documents may exist which should have been disclosed under disclosure orders but which may not have been disclosed because they had been caught by the CCC investigation.
  1. [158]
    In these cases the applicant said that it should be able to seek discovery of those documents from the CCC. However, in my view if the existence of such documents rests on the premise that some or all of the respondents may not have complied with disclosure orders, then the remedy is not to pursue those documents via a third party, but to commence an action against the respondents for a failure to comply with disclosure directions.

 Orders

  1. [159]
    The Attendance Notice to Produce filed by the applicant on 28 June 2018, and directed to the Proper Officer of the Crime and Corruption Commission, is set aside. The applicant's application to inspect and copy documents is dismissed.

Footnotes

[1] T4-3 Ll 22-27

[2] Trade Practices Commission v Arnotts Limited (1989) 88 ALR 657 at 90

[3] Xstrata Queensland Limited v Santos Limited & Ors [2005] QSC 323 [47]

[4] Leighton Contractors Pty Ltd v Western Metals Resources Limited   [2000] QSC 27, [22]

[5] National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, 379, 381-2

[6] Commissioner for Railways v Small(1938) 38 SR (NSW) 564 at 573

[7] Alder v Khoo & Ors [2010] QCA 360

[8] Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619

[9] Marra Developments Ltd (No. 2) (1979) 4 ACLR 153 at 154-155

[10] Shaw v Yaranova & Anor [2001] VSCA 55, Redlich and Mandie JJA at [26]

[11] NSW Crime Commission v Hawes ( 1992) 74 A Crim R 199, James J (at 203)

[12]   Weston and Parer v State of Queensland (Department of Justice and Attorney-General) (No.  4) [2016] QIRC 075

[13]   Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667 at 684

[14] Gary Jibson v Q-Comp W/C 2013/145 18 July 2013

[15] Kelsey v Logan City Council & Ors [2018] QIRC 99

[16] Sogelease Australia Ltd & Anor v David James Griffin & Ors [2003] NSWSC 178

[17] Clayton Utz (A Firm) v Dale [2015] 47 VR 48 at [208]

[18] Australian Securities Commission v Mining Projects Group Limited (2007) 65 ACSR 264

[19] Johns v Australian Securities Commission (1993) 178 CLR 408, 423-4

[20] Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564

[21] Williams v Keelty (2001) 111 FCR 175

[22] Flori v Commissioner of Police [2014] QSC 284

[23] R v Leach  [2018] QCA 131, [47]

[24] Pioneer Concrete Pty Ltd v Trade Practices Commission (1982) 152 CLR 460

[25] Potter v Minaham(1908) 7 CLR 277 at 304

[26] Grollo v Macauley (1995) 56 FCR 533

[27] Hart v Australian Federal Police (2002) 124 FCR 384

[28] ASIC v Rich [2005] 220 ALR 324

[29] R v Seller & McCarthy (2013) 273 FLR 155

Close

Editorial Notes

  • Published Case Name:

    Sharon Rae Marie Kelsey v Logan City Council & Ors

  • Shortened Case Name:

    Kelsey v Logan City Council & Ors

  • MNC:

    [2018] QIRC 108

  • Court:

    QIRC

  • Judge(s):

    Member Black IC

  • Date:

    24 Aug 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412
4 citations
Jump To
Cite 1 - (1993) 31 NSWLR 412
Cite 2 - (1993) 31 NSWLR 412
Cite 3 - (1993) 31 NSWLR 412
Cite 4 - (1993) 31 NSWLR 412
Alder v Khoo [2010] QCA 360
2 citations
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Cite 1 - [2010] QCA 360
Cite 2 - [2010] QCA 360
ASIC v Rich (2005) 220 ALR 324
2 citations
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Cite 1 - (2005) 220 ALR 324
Cite 2 - (2005) 220 ALR 324
Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN 250
1 citation
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Cite 1 - (1952) 72 WN 250
Attorney-General for New South Wales v Stuart (1994) 34 NSW LR 667
2 citations
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Cite 1 - (1994) 34 NSW LR 667
Cite 2 - (1994) 34 NSW LR 667
Australian Securities Commission v Mining Projects Group Limited (2007) 65 ACSR 264
2 citations
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Cite 1 - (2007) 65 ACSR 264
Cite 2 - (2007) 65 ACSR 264
C v National Crime Authority (1987) 78 ALR 338
1 citation
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Cite 1 - (1987) 78 ALR 338
Clayton Utz (A Firm) v Dale [2015] 47 VR 48
2 citations
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Cite 1 - [2015] 47 VR 48
Cite 2 - [2015] 47 VR 48
Commission of Taxation v De Vonk (1995) 61 FCR 564
2 citations
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Cite 1 - (1995) 61 FCR 564
Cite 2 - (1995) 61 FCR 564
Flori v Commissioner of Police[2015] 2 Qd R 497; [2014] QSC 284
2 citations
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Cite 1 - [2014] QSC 284
Cite 2 - [2014] QSC 284
Grollo v Macauley (1995) 56 FCR 533
2 citations
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Cite 1 - (1995) 56 FCR 533
Cite 2 - (1995) 56 FCR 533
Hart v Commissioner of Australia Federal Police (2002) 124 FCR 384
2 citations
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Cite 1 - (2002) 124 FCR 384
Cite 2 - (2002) 124 FCR 384
Johns v Australian Securities Commission (1993) 178 CLR 408
2 citations
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Cite 1 - (1993) 178 CLR 408
Cite 2 - (1993) 178 CLR 408
Kelsey v Logan City Council & Ors [2018] QIRC 99
2 citations
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Cite 1 - [2018] QIRC 99
Cite 2 - [2018] QIRC 99
Leighton Contractors Pty Ltd v Western Metals Resources Limited[2001] 1 Qd R 261; [2000] QSC 27
2 citations
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Cite 1 - [2000] QSC 27
Cite 2 - [2000] QSC 27
Marra Developments Ltd (No. 2); Re (1979) 4 ACLR 153
2 citations
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Cite 1 - (1979) 4 ACLR 153
Cite 2 - (1979) 4 ACLR 153
Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 619
2 citations
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Cite 1 - [1999] NSWSC 619
Cite 2 - [1999] NSWSC 619
National Employers' Mutual General Association Ltd v Waind and Hill (1978) 1 N.S.W. L.R. 372
2 citations
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Cite 1 - (1978) 1 N.S.W. L.R. 372
Cite 2 - (1978) 1 N.S.W. L.R. 372
New South Wales Crime Commission v Hawes (1992) 74 A Crim R 199
2 citations
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Cite 1 - (1992) 74 A Crim R 199
Cite 2 - (1992) 74 A Crim R 199
OReilly v State Bank of Victoria Commissioners (1983) 153 CLR 1
1 citation
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Cite 1 - (1983) 153 CLR 1
Pioneer Concrete (Vic.) Pty Ltd v Trade Practices Commission (1982) 152 CLR 460
2 citations
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Cite 1 - (1982) 152 CLR 460
Cite 2 - (1982) 152 CLR 460
Potter v Minahan (1908) 7 C.L.R. 277
2 citations
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Cite 1 - (1908) 7 C.L.R. 277
Cite 2 - (1908) 7 C.L.R. 277
R v Leach[2019] 1 Qd R 459; [2018] QCA 131
2 citations
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Cite 1 - [2018] QCA 131
Cite 2 - [2018] QCA 131
R v Seller (2013) 273 FLR 155
2 citations
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Cite 1 - (2013) 273 FLR 155
Cite 2 - (2013) 273 FLR 155
Registrar, Court of Appeal (NSW) v Craven (1994) 126 ALR 668
1 citation
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Cite 1 - (1994) 126 ALR 668
Shaw v Yaranova [2001] VSCA 55
2 citations
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Cite 1 - [2001] VSCA 55
Cite 2 - [2001] VSCA 55
Sogelease Australia Ltd & Anor v David James Griffin & Ors [2003] NSWSC 178
2 citations
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Cite 1 - [2003] NSWSC 178
Cite 2 - [2003] NSWSC 178
Spokes v Grosvenor Hotel Co Ltd (1897) 2 QB 124
1 citation
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Cite 1 - (1897) 2 QB 124
The Commissioner for Railways v Small (1938) 38 S.R. N.S.W 564
2 citations
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Cite 1 - (1938) 38 S.R. N.S.W 564
Cite 2 - (1938) 38 S.R. N.S.W 564
Trade Practices Commission v Arnotts Limited (1989) 88 ALR 657
1 citation
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Cite 1 - (1989) 88 ALR 657
Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044
1 citation
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Cite 1 - [1999] NSWSC 1044
Weston v State of Queensland (Department of Justice and Attorney-General) (No. 4) [2016] QIRC 75
2 citations
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Cite 1 - [2016] QIRC 75
Cite 2 - [2016] QIRC 75
Williams v Keelty (2001) 111 FCR 175
2 citations
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Cite 1 - (2001) 111 FCR 175
Cite 2 - (2001) 111 FCR 175
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
2 citations
Jump To
Cite 1 - [2005] QSC 323
Cite 2 - [2005] QSC 323

Cases Citing

Case NameFull CitationFrequency
Mullins v Workers' Compensation Regulator; Ex parte Drake International Pty Ltd [2019] QIRC 651 citation
Wallace v Workers' Compensation Regulator [2021] QIRC 2772 citations
1

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