Bjelivuk & Ors v Gemstone Exploration Pty Ltd [2001] QLRT 43

LAND AND RESOURCES TRIBUNAL QUEENSLAND CITATION: Re Milos Bjelivuk, Sedina Bjelivuk and Ivan Uzarevic and Gemstone Exploration Pty Ltd [2001] QLRT 43 PARTIES: Milos Bjelivuk, Sedina Bjelivuk and Ivan Uzarevic Applicants - and - Gemstone Exploration Pty Ltd Respondent - and - Commissioner of Police (non-party) - and - Sergeant Geoffrey Angel (non-party) - and - Director-General, Department of Natural Resources and Mines (non-party) - and - Mining Registrar, Winton (non-party) FILE NO: OTX70001/2001 PROCEEDING: Applications by non-parties regarding subpoenas. DELIVERED ON: 21 June 2001 DELIVERED AT: Winton HEARING DATE: 20 June 2001 PRESIDING MEMBER: Smith DP ORDER/S: 1. I order that the Commissioner of Police and Sergeant Angel do not have to produce the documents in answer to the subpoena. (at [22]) 2. I further order that the reasons I have given relating to the police claim against production also apply to the documentation with respect to the two Department of Natural Resources and Mines documents -- 1 of 9 -- identified and that those two documents are not to be produced in response to the subpoena. (at [29]) CATCHWORDS: SUBPOENA – LEGITIMATE FORENSIC PURPOSE – PUBLIC INTEREST IMMUNITY – ONGOING POLICE INVESTIGATIONS Land and Resources Tribunal Act 1999, s 49 ACI Operations Pty Ltd v Quandamooka Lands Council [2001] QCA 119, applied Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667, applied Brouwer v Titan Corporation Limited and Others 149 ALR 50, considered R v Spizzirri [2000] QCA 469, considered Young v Quin (1985) 4 FCR 483, considered COUNSEL: Mr Jarrett for the Respondent instructed by P W Skewes & Dempster, Solicitors SOLICITORS: Mr I Demspter of P W Skewes & Dempster for the Applicants Mr Keenan of Eliadis and Associates for the Respondent Mr C Strofield for the Commissioner of Police and Sergeant Geoffrey Angel Mr Beausang for the Director-General, Department of Natural Resources and Mines and the Mining Registrar, Winton [1] SMITH DP: (Ex Tempore) I have before me a request by the Queensland Police Service on behalf of the Commissioner and Sergeant Angel resisting a subpoena to produce certain documents in the hearing of this matter. The substantive issues raised in the objection by the Commissioner were heard by me late yesterday afternoon. The objection is adopted by the Director-General, Department of Natural Resources and Mines and the Mining Registrar, Winton, with respect to two documents relating to the police material. [2] Before proceeding to judgment on the issues in this matter, it is appropriate for me to make some general comments regarding the Tribunal’s jurisdiction and in the manner in which this matter has progressed to date. -- 2 of 9 -- [3] The Court of Appeal in the case of ACI Operations Pty Ltd v Quandamooka Lands Council1 made observations regarding the manner in which the Tribunal is to conduct matters. Davis JA commented: “Relevant provisions of the Mineral Resources Act 1989 are poorly drafted and by no means clear in their meaning. This is particularly unfortunate in a jurisdiction in which expedition and simplicity and informality of procedure should be important aims.”2 [4] His Honour went on to further comment that: “The Tribunal should endeavour, wherever possible, to adopt procedures which are expeditious and informal. It is a simple matter, in cases of this kind, to ask the parties what their submissions are and to listen to their evidence.”3 [5] It is for the reasons set out by the Court of Appeal that I have continued to hear this matter as expeditiously as possible whilst still endeavouring to allow the parties full rights of natural justice. [6] I should make another comment in this matter. Of necessity, my judgment in this matter is likely to appear rather disjointed. This is an important consideration as will appear later in my judgment relating to the legal principles to be considered in considering requests of the kind made by the Commissioner of Police. [7] Operating from remote facilities such as Winton is never easy for either the parties or the Tribunal. Unfortunately, in this matter, technology has once again failed the Tribunal in that computer access could not be obtained to various databases to assist me with my research in this matter. [8] Unfortunately, as late as the last 20 minutes, relevant authorities have only been provided to me to assist in determining this matter. Therefore, of necessity, the judgment may appear rather disjointed and I apologise to the parties for that. However, the overriding principle must be to continue to hear this matter as expeditiously as possible. [9] There is a key element that I must bear in mind in determining the merits of the application. The authorities make it clear that one is to consider “the legitimate forensic purpose” before considering issues of public interest immunity. I wish 1 [2001] QCA 119. 2 Ibid para 2. 3 Ibid para 9. -- 3 of 9 -- to place on record the fact that I have at all times considered legitimate forensic purpose prior to public interest immunity. [10] Turning now to the facts of this particular matter. By letter dated 19 June 2001, the Queensland Police Service wrote to the Registrar of the Land and Resources Tribunal in the following terms: “You will see that the document refers to a complaint made to police on 12 April 2001. This investigation is ongoing. A number of suspects are yet to be interviewed in respect of this matter. It is not known when the investigation will be finalised. It is impractical to suggest that an officer from the Office of the Queensland Police Service Solicitor could attend at Winton on 20 June 2001. I ask that you adjourn the matter of the subpoena until such time as travel arrangements can be made for an officer’s attendance and until such time as all material is collated and examined and full and proper instructions can be provided in response to the claim of privilege.” [11] Attached to that correspondence and also separately in the hands of the Tribunal is a copy of the relevant subpoena in this matter. [12] The subpoena is directed to Sergeant Geoffrey Angel and to the Commissioner of Police and it requires the production of documents set out in a schedule. The schedule is cast in the following terms: “The complete file of Queensland Police Service concerning a complaint/s of illegal mining conducted on the following mining tenements on or about the 12th April, 2001 at Winton in the State of Queensland, namely:- (a) Mining Lease No ML7271 in the Mining District of Winton in the name of Ivan Uzarevic; (b) Mining Lease No ML95104 in the Mining District of Winton in the name of Ivan Uzarevic; (c) Mining Lease No ML95198 in the Mining District of Winton in the name of Ivan Uzarevic; (d) Mining Lease Application No MLA95269 in the Mining District of Winton in the name of Milos Bjelivuk and Sedina Bjelivuk; (e) Application for Exploration Permit EPM11392 in the name of Milos Bjelivuk; and (f) Application for Exploration Permit EPM11542 in the name of Milos Bjelivuk.” [13] The general principles to be followed in dealing with subpoenas are set out in Cairns’ Australian Civil Procedure. Cairns at p 533 puts it in the following terms: “Obtaining and admitting into evidence documents produced on subpoena is a three stage procedure, as the New South Wales Court of Appeal explained in Waind v Hill and National Employers Mutual General Association Ltd. First, there is obedience to the subpoena. The witness must produce the documents to the court, but not to the parties. Secondly, the court decides whether or not to allow either or all of the parties to inspect them before the trial. Third, if a party tenders them in evidence, the court determines whether they are admissible in evidence. If a document is not put in evidence, the court decides what use may be made of it, for example, in cross-examination. This decision is made at the third stage.” -- 4 of 9 -- [14] I now turn to the authorities. For simplicity of delivering my reasons, I will refer to all of the relevant authorities relating to both legitimate forensic purpose and to public interest immunity, although, as stated previously, I have considered the issue of legitimate forensic purpose as a precondition in this matter. [15] The principal authority on this matter is Attorney-General for New South Wales v Stuart.4 In that case the Court of Criminal Appeal made the following observations in the judgment of Hunt CJ at CL. His Honour had this to say of the test for public interest immunity: “Where a claim of public interest immunity is made, the judge (or magistrate) is required to consider two conflicting aspects of the public interest: (i) whether harm would be done by the production of the documents, and (ii) whether the administration of justice would be frustrated or impaired if the documents are withheld, and to decide which of those aspects predominates in the particular case. This balancing exercise can only be undertaken when it appears that (a) damage would be done to the public interest by producing the documents sought or documents of that class, and (b) there are or are likely to be documents which contain material which is relevant to the issues raised in the proceedings: Sankey v Whitlam (at 38-39); Alister v The Queen (at 412). This latter issue encompasses what has become known as the legitimate forensic purpose for the party’s desire to have access to the documents: Maddison v Goldrick [1976] 1 NSWLR 651 at 666; R v McPhail (1988) 36 A Crim R 390 at 404; R v Saleam (1989) 16 NSWLR 14 at 18; it involves the need to prevent a fishing expedition in the hope of catching something worthwhile to the defence case: Burmah Oil Co Ltd v Governor and Company of the Bank of England (at 1129); Alister v The Queen (at 414, 455). In order to determine whether there is such a legitimate forensic purpose, it is not appropriate for the judge to inspect the documents simply because of a bare unsupported assertion that upon such an inspection something may be found which is helpful to the accused: Alister v The Queen (at 414, 439, 454). In Alister’s case, the documents were eventually inspected by the High Court because – applying the criterion suggested in Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 439 – the majority were satisfied that there was some concrete ground for a belief that the documents did contain information which would materially assist the accused, or (as Gibbs CJ put it, at 414) it was “on the cards” that they would do so: see also R v Saleam (at 17-18). It is necessary for a party seeking to overcome a claim of public interest immunity to demonstrate his legitimate forensic purpose for seeing the documents before the judge proceeds to the balancing process: Burmah Oil Co Ltd v Governor and Company of the Bank of England (at 1113-1114, 1129); Alister v The Queen (at 412, 414, 438). Which public interest will predominate in the particular case must be determined by reference to the circumstances of that case: Sankey v Whitlam (at 38-39); Alister v The Queen (at 453). There can be no statement of general application as to which should predominate in any particular case.”5 4 (1994) 34 NSWLR 667. 5 (1994) 34 NSWLR 667 at pp 675-6. -- 5 of 9 -- [16] The judgment goes on: “The concept of legitimate forensic purpose is not confined to claims of public interest immunity. It arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least “on the cards” that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so: R v Saleam (at 17-18). He is not entitled to conduct a fishing expedition. The need to show a legitimate forensic purpose arises even if the claim of public interest immunity fails. It is therefore a prerequisite before the balance required for that claim can be struck.”6 [17] The question of legitimate forensic purpose is then considered at some length by His Honour. [18] In my view this matter has a number of difficulties in its final determination. On the one hand there is a properly made out subpoena issued on Friday last to the Commissioner of Police and others to produce documents. That subpoena refers on its face to issues which appear relevant to the conduct of this action. Further, the Respondent in this case who has not issued a subpoena has indicated in submissions from the Bar table that it was also its intention to issue a subpoena for the police material but in the present case it has decided not to do so because of lack of time. [19] In opposition to that course, however, are submissions made by both Mr Strofield for the Queensland Police Service yesterday as well as comments made by Mr Jarrett of counsel representing the applicant. I have referred, in the beginning of this judgment, to the terms of the subpoena. It is broad in its actual words. During submissions Mr Jarrett indicated that what was actually sought were three statements said to be statements of the following persons: Mr Reid, Mr Vance and Mr Bjelivuk. [20] Further submissions were made that Mr Vance has advised, I understand, the applicant that there is material in support of the Applicants’ case contained within his statement. This, however, is more precision than that contained within the subpoena itself. It certainly raises the spectrum of a fishing expedition in this matter. [21] Further, in balancing my decision, I take particular account of the comments made regarding Mr Vance. If he has material relevant to these proceedings he, 6 (1994) 34 NSWLR 667 at p 681. -- 6 of 9 -- of course, can be called as a witness. Further subpoenas could also be given to the other persons mentioned as having given statements. Other consequences, of course, can flow should evidence be given under oath at these proceedings which is at odds to evidence already given in accordance with the statutory declarations which I understand may or may not have been made in accordance with the police investigations. [22] Accordingly, although this matter does represent a delicate balancing operation, it is my view that on the basis of the subpoena in the terms as framed the legitimate forensic purpose has not been made out. I therefore order that the Commissioner of Police and Sergeant Angel do not have to produce the documents in answer to the subpoena. Before closing, however, I believe it is appropriate, given the submissions made by the Queensland Police Service, to make some comments regarding public interest immunity. [23] In the case of Brouwer v Titan Corporation Limited and Others 149 ALR 50 circumstances quite similar to this matter were considered. In that case, as I understand it, the subpoena did refer to very specific documents as part of an ongoing police investigation, and despite the fact that those investigations were not concluded, the documents were ordered to be produced. However, in that case the evidence showed that the police investigations were nearing completion and that there would be no infringement of the public interest should those documents be produced. That is in my view not the case in this matter, which is more on foot with Attorney-General v Stuart. [24] It is not known at this point whether or not there will be criminal charges arising out of the current investigation. The submissions made by Mr Strofield indicated that a number of persons are yet to be interviewed. Those persons may very well be suspects in the matter or charges may or may not in the course of events be laid against those persons. Having not viewed the documents I have no way of knowing. Given my decision relating to the first limb it is unnecessary for me to consider the documents. However, I indicate on the balance of material before me that if a subpoena were issued in this matter in specific terms my inclination at this stage would be not to allow production on the basis of public interest immunity, although I would require more specific -- 7 of 9 -- information from the Queensland Police Service relating to the terms of the claim made, specifically detailing the investigations and a time line for the completion of those investigations. [25] I make these comments due to the fact that the hearing is commencing today in Winton and is likely to be concluded early next week and mindful of the fact that any subpoena that may or may not be issued by the Applicant or the Respondent in this matter, in light of my ruling today, will necessarily have to be dealt with as a matter of urgency. [26] Before finalising the judgment I should also make comment regarding the case of the Court of Appeal in Spizzerri,7 a decision of 21 November 2000. It was put to me by Mr Strofield that that case was a relevant authority that the long held principles of courts perusing material in making its decision on subpoenas no longer applies. [27] Having had the opportunity to peruse that decision now, I do not accept the submissions made as relevant to a decision as to whether or not public interest immunity can be made out. What that case was about was whether or not documents were relevant to a proceeding and the Court of Appeal said that it is not the function of the Judge or Magistrate to go through the documents and select those which he or she thinks are relevant. That is not the case in this matter where issues of public interest privilege arise. [28] Accordingly I specifically find that I make no ruling on public interest privilege having not viewed the document which I believe would be necessary before any final decision could be made. It is not necessary for me to do so in light of the manner in which the subpoena has been made out. [29] I further order that the reasons I have given relating to the police claim against production also apply to the documentation with respect to the two Department of Natural Resources and Mines documents identified and that those two documents are not to be produced in response to the subpoena. 7 R v Spizzirri [2000] QCA 469; See also Young v Quin (1985) 4 FCR 483. -- 8 of 9 -- [30] I give a direction that the remaining subpoenaed material from the Department of Natural Resources and Mines be provided also in the Brisbane Registry to the Respondent. -- 9 of 9 --