Introduction
How many proceedings could claim to involve even close to the following (seemingly disparate) issues and areas of law:
- Illegal clearing of vegetation
- Murder (of a government employee by a 79 year old farmer)
- Nervous shock proceedings by the witness to the murder
- An equity suit to challenge an allegedly fraudulent land transfer to defeat damages in the nervous shock proceedings
- Death in jail
- Leave to appeal being sought for a decision to set aside a subpoena
- The Privacy Act (Privacy & Personal Information Protection Act 1998) being used as a sword in an attempt to set aside a subpoena to Corrective Services
This case ticked all the boxes. And more. And the proceedings continue.
The Strange Litigation is an interesting factual narrative, yet harrowing in origins.
Most recently, the proceedings have been aired in the New South Wales Court of Appeal concerning whether a subpoena issued to NSW Corrective Services ought to be set aside on the basis that it offends the Privacy Act.
Factual Background to the Strange Litigation
Robert Strange, the protagonist for present purposes, was a compliance officer with the NSW Office of Environment and Heritage.
In 2014, in the course of his employment, he had the terrible misfortune of investigating a property at Croppa Creek, a very small village in the Gwydir Shire. He attended with his colleague, Glen Turner.
Their investigation concerned the illegal clearing of vegetation on a property owned by an elderly farmer, Ian Turnbull. He was the patriarch of a wealthy NSW wheat farming dynasty. He was reputedly a man who “always got his way”.
During the inspection, things got heated. Then turned brutal. Mr Turnbull fatally gunned down Mr Turner “like a feral pig”. Mr Strange witnessed the bloody ordeal involving the murder of his colleague.
Mr Turnbull was sentenced to 35 years in prison. He died in prison in March 2017.
Mr Strange sued the estate of Mr Turnbull for damages for nervous shock stemming from witnessing the murder of his colleague.
Equity Proceedings in the New South Wales Supreme Court
In 2016, Mr Strange commenced an equity suit in the Supreme Court of New South Wales against the Estate of Mr Turnbull. He challenged a transfer of land made by Mr Turnbull to his wife prior to his death. These proceedings rely on section 37A Conveyancing Act 1919 (NSW) which provides that property transfers made with the intention of defrauding creditors is voidable at the instance of any person prejudiced.
In the equity proceedings, Mr Strange issued a subpoena to Corrective Services NSW for telephone records between Mr Turnbull and his wife and son. Records were produced without objection. The Defendants sought to set aside the subpoena. His Honour Justice Lindsay refused their challenge. He held that the subpoena had a legitimate forensic purpose (Strange v Turnbull [2018] NSWSC 898).
The Defendants sought leave to appeal the interlocutory decision with the litigation then entering the New South Wales Court of Appeal.
Court of Appeal
The Court of Appeal dismissed the application (Turnbull v Strange [2018] NSWCA 157 per Basten JA, Meagher JA, Emmett AJA).
The key issue on appeal was whether the subpoena should be set aside on the basis that the subpoena required disclosure of personal information about Mr Turnbull’s wife and son. It was argued that disclosure of the information would breach section 18 of the Privacy and Personal Information Protection Act 1998 (NSW).
The Court held that the Privacy Act did not prohibit the documents being produced.
There is no basis within the scheme of the legislation to limit the powers of a court, tribunal or other authority with power to issue a subpoena, a search warrant or a statutory instrument effective to require disclosure of information, to the exercise of those powers in aid of law enforcement or protection of the public revenue, as opposed to the use of those procedures generally in relation to the administration of justice.
Emmett AJA held that the mere production of the information by the Commissioner to the Court did not constitute disclosure of the information to any person or body; it thus fell outside the ambit of section 18 of the Privacy Act. The grant of access to the material by the court fell within the court’s judicial functions and was protected by section 6 of the Privacy Act.
The issue of a subpoena is not necessarily a core function of the exercise of judicial power, but it is clearly a function of a court of such a kind as to “relate to” the determination of proceedings before it.
In Pi v State of New South Wales (No 4) [2015] NSWSC 1410 at [5] His Honour Beech-Jones rejected a challenge to the validity of a subpoena on the basis that it constituted a breach of the Privacy Act, stating that section 6 exempts the judicial functions of courts from its operation.
Take outs
The judgments provide insightful and helpful commentary on the meaning and effect of the legislative scheme of the Privacy Act.