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Supreme Court of Victoria Decisions |
Last Updated: 18 September 2008
AT MELBOURNE
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JUDGE:
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WHERE HELD:
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Melbourne
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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PROCEDURE – Preservation Order under Rule 37.01 Supreme Court (Civil Procedure) Rules 2005 – Claim that original documents essential – Whether right against third party exists – Effect of Division 5 Crimes Act (1958) s. 254 Destruction of Evidence.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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For the Defendant
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Victorian Government Solicitors Office
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1 This is an application by the plaintiff pursuant to rule 37.01 to preserve certain original documents compiled by members of Victoria Police. The State of Victoria opposes the application. The question that I am required to determine is whether, on the plaintiff's evidence adduced before me, I should make the orders sought by her.
2 On Friday 5 September 2008, Vickery J dismissed paragraphs six to twenty-three of the orders sought in the amended originating motion in relation to preliminary discovery from the State of Victoria. As I have said, the remaining question is that of the preservation of original documents.
3 The plaintiff now seeks the following orders by paragraphs two to five of the originating motion:
“(a) A preservation order on these original 20 handwritten pages from Sergeant Andrew Herdman, provided to me in FoI in October 2005 until further orders;
(b) The continuance of the preservation order on the 2001 diary on Sergeant Herdman's diary 2001 in its original form made on 28 May 2008 by Hollingworth J and continued by Judd J on 3 June 2008 until further orders;
(c) A preservation order on the original of Superintendent Lindsay Florence's 2001 diary provided to me in part in October 2005 with the exemptions released on 23 November 2006, until further orders;
(d) Preservation order on two additional handwritten pages from Superintendent Lindsay Florence provided to me in FoI released in October 2005 with released exemptions on 23 November 2006.”
4 I should add that in respect of order number 3, Hollingworth J, on 28 May 2008, made an ex parte order restraining Victoria Police from destroying the 2001 diary of Sergeant Andrew Herdman. That order has been maintained by a subsequent order of Judd J.
5 At the hearing before Vickery J on Friday 5 September, his Honour concluded that the plaintiff did not have an arguable cause of action against the defendant and dismissed the application for preliminary discovery on that basis.
6 Before me the plaintiff relied upon affidavits sworn by her on 30 May and 8 August 2008. The defendant relied upon affidavits sworn by Leung Kim Thi on 22 August 2008.
7 During the course of the hearing I permitted the plaintiff, who represents herself, over objection from Mr Wotherspoon, who appeared for the defendant, to tender 12 exhibits comprising correspondence between the plaintiff and Victoria Police relevant to Freedom of Information requests by the plaintiff for documents held by Victoria Police and relating to her.
8 Before turning to the relevant principles in an application such as this, I should state that I have no doubt that the plaintiff has a genuine belief that over the past 12 years a number of injustices have been perpetrated upon her. That said, however, a motion has to be resolved by the application of legal principle to the facts adduced before me.
9 Rule 37.01 gives the court the power to make an order preserving property. In this case the plaintiff identified particular documents made by Sergeant Herdman and Superintendent Florence. Copies of those documents, with FoI exemptions in some parts, were contained in Exhibit 7 tendered on the application.
10 The plaintiff contended that the document should be the subject of a preservation order as she wished to ensure that there were in fact originals in existence and, further, that the copies were authentic and could be inspected without any exemptions as provided by the Freedom of Information Act 1982. She contended that maintenance of the integrity of the originals was relevant, indeed essential, to any claim she may bring against third parties such as the Alfred Hospital and a firm of real estate agents identified in Exhibit 7.[1]
11 In my view there are several matters that need to be established by the plaintiff before I make the orders that she seeks.
12 Firstly, I take the view that, as submitted by Mr Wotherspoon, it is necessary for the plaintiff to establish she has an identified legal or equitable, enforceable right which provides the foundation for the order of preservation: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd.[2] ABC v Lenah concerns the use of an interlocutory injunction to restrain the television company from broadcasting material acquired by hidden video camera. The High Court held that, absent identifiable legal or equitable right, there was no power to grant an injunction restraining the broadcast of that material.
13 Rule 37.01 or its various predecessors has been considered on several occasions by judges of this court.[3] Each of those cases demonstrate that on such an application a court would not investigate the merits of a particular claim. In Johnson, distinction between the relief afforded by the grant of an interlocutory injunction and an order in the form of rule 37.01 was noted.
14 Notwithstanding these observations, it seems to me that the plaintiff in a case where proceedings have not yet been issued must demonstrate the existence of an enforceable right, be it legal or equitable or at least an arguable case, in respect of such right before rule 37.01 can be engaged otherwise the court would be making an order on the basis of a putative claim which had no proper basis.
15 In some cases, particularly where the writ has been issued and the basis for the claim is articulated clearly, the question of an enforceable right or arguable case would not be an issue. In this case, however, it is a live issue. The defendant, through Mr Wotherspoon, argues that no cause of action or legal right which could be maintained in this court, has been identified by the plaintiff.
16 Vickery J has already ruled that the plaintiff has no cause of action against the State of Victoria and before me the plaintiff did not rely upon this claim; rather, she asserts that she may have a claim against the Alfred Hospital or the real estate agents.
17 This assertion appears to be based on a copy letter of the real estate agent contained within Exhibit 7 and dated 9 June 1998. Putting to one side the statute of limitations, I do not regard that letter, on its face, as providing substance for a legally enforceable right against the Alfred Hospital or the real estate agent. Perusal of the balance of the exhibit fortifies me in reaching this conclusion.
18 Ultimately, I have formed the view that at the present time there is no material before me which enables me to conclude that the plaintiff possesses a legal or equitable right against a third party, be it the Alfred Hospital, the real estate agent or some other party. Nor does she have an arguable case.
19 Secondly, the plaintiff must establish that an order preserving the particular documents is relevant to any arguable right or cause of action that she may possess. Even if I accepted that the plaintiff has a cause of action against the nominated parties, I am uncertain as to how the preservation of the originals of the documents at this point of time would assist her action against those parties. For instance, the letter of the real estate agent is complete in its copy form and would, in the absence of the original, be able to be relied upon at any putative hearing.
20 In my view, the real purpose of the plaintiff's application is to hunt down Victoria Police notes to determine whether copies obtained in her FoI application are authentic and also to give her the ability to inspect the exempted parts. Whilst this may be of great interest and indeed concern to the plaintiff, it is in my view irrelevant to any potential proceeding in this court.
21 Thirdly, the plaintiff must, in my view, establish in the context of this case that there is a real risk that the original documents sought may be either destroyed or removed from the jurisdiction. In normal circumstances, once a writ is issued, the plaintiff would be entitled to subpoena the documents (assuming that the writ was issued against parties other than Victoria Police) and inspect the original documents once they were in the custody of the court.[4] For a preservation order to be made in respect of the original documents, which may or may not exist, there must be some evidence that demonstrates a risk that the original documents will not be available for inspection. Notwithstanding the plaintiff's submissions concerning inferences I should draw from some of the documents contained within the tendered exhibits, I take the view that there is no evidence of any such risk other than the plaintiff's suspicion that the originals may be tampered with. Suspicion alone is insufficient.
22 Fourth, in my view, there is a powerful discretionary consideration that militates against making the orders sought, namely Division 5 of the Crimes Act 1958, headed “Destruction of Evidence”.[5]
23 Under s 254 of that Act, it is a criminal offence for a person who knows that documents which are reasonably likely to be required in evidence and legal proceedings, to destroy or conceal such documents. The State of Victoria is now on notice from the plaintiff as to her desire that the originals of the plaintiff's identified documents, if still in existence, be maintained, and no doubt the State will take that into account in determining what course if any it takes in respect of maintenance of the original documents. In my view and in the circumstances of this case, the existence of this provision is a further reason to reject the plaintiff's application.
24 For the reasons I have endeavoured to set out, I will dismiss the balance of the originating motion which has not been the subject of the orders of Vickery J and I propose to dissolve the orders made by Hollingworth J on 28 May 2008.
25 The orders I propose to make are as follows:
(1) Order number (1) of the orders of Hollingworth J made on 28 May 2008 be dissolved.
(2) The plaintiff's further amended originating motion filed 8 August 2008 is dismissed.
(3) The plaintiff pay the defendant’s costs of the proceeding including reserved costs but excluding the costs of the applications before Vickery J on 5 September 2008.
(4) There be a stay of three months on the payment of costs the subject of order number (3).
[1] The letter of 25 March from Victoria Police to her detailing a number of documents pursuant to her request under the Freedom of Information Act.
[2] (2001) 208 CLR 199
[3] See Campbell v Brownless (1901) 26 VLR 609 and Johnson v Tobacco Leaf Marketing Board [1967] VR 427
[4] See National Employers’ General Mutual Association v Waind and Hill [1978] 1 NSWLR 372
[5] Act No 6 of 2006 – amending the Crimes Act 1958
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URL: http://www.austlii.edu.au/au/cases/vic/VSC/2008/357.html