Kazal v Independent Commission Against Corruption [2018] NSWSC 1370

Kazal v Independent Commission Against Corruption [2018] NSWSC 1370

The Notices to Produce were set aside because the plaintiff did not show a legitimate forensic purpose: the pleaded issues could be determined from documents already available to him and the broad categories sought amounted to speculation or fishing. The Notices also failed to comply with UCPR r 21.10 because they sought broad classes of communications rather than specific, clearly identified documents. Production of ICAC material would breach s 111(2) or s 111(3) of the Independent Commission Against Corruption Act 1988 (NSW), and categories 1 to 4 of the Notice served on the State were also oppressive given their breadth, likely searches across State agencies, estimated cost and tenuous...

Jurisdiction
Australia
Judgment Date
07 September 2018
Procedural Posture
Civil Procedure Ruling in Proceedings Claiming Misfeasance in Public Office and Related Declaratory Relief and Damages / Hearing of the First and Third Defendants' Notices of Motion Filed 23 March 2018 Seeking to Set Aside Notices to Produce Dated 26 February 2018
Outcome
The first and third defendants' motions to set aside the Notices to Produce were granted, and the plaintiff was ordered to pay their costs of those motions.
Legal Topics
['notices to Produce Before Hearing' 'legitimate Forensic Purpose' 'fishing Expedition' 'secrecy Under the Independent Commission Against Corruption Act 1988 (nsw)' 'ucpr R 21.10' 'oppressive Notices' 'misfeasance in Public Office']
['civil Procedure' 'administrative Law' 'anti Corruption and Public Integrity' 'torts'] ['notices to Produce Before Hearing' 'legitimate Forensic Purpose' 'fishing Expedition' 'secrecy Under the Independent Commission Against Corruption Act 1988 (nsw)' 'ucpr R 21.10' 'oppressive Notices' 'misfeasance in Public Office']

Case Brief

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Procedural Posture

Civil Procedure Ruling in Proceedings Claiming Misfeasance in Public Office and Related Declaratory Relief and Damages / Hearing of the First and Third Defendants' Notices of Motion Filed 23 March 2018 Seeking to Set Aside Notices to Produce Dated 26 February 2018

Legal Issues

  1. 1 ['Whether the Notices to Produce had a legitimate forensic purpose.' 'Whether production of documents sought from the first defendant would be precluded by s 111 of the Independent Commission Against Corruption Act 1988 (NSW).' 'Whether the Notices to Produce complied with UCPR r 21.10 by identifying specific documents or things clearly identified and relevant to a fact in issue.' 'Whether the Notice to Produce served on the third defendant was oppressive.' 'Whether the absence of pleaded allegations against the State affected the forensic purpose of the Notice to Produce served on the third defendant.']

Ratio Decidendi

The Notices to Produce were set aside because the plaintiff did not show a legitimate forensic purpose: the pleaded issues could be determined from documents already available to him and the broad categories sought amounted to speculation or fishing. The Notices also failed to comply with UCPR r 21.10 because they sought broad classes of communications rather than specific, clearly identified documents. Production of ICAC material would breach s 111(2) or s 111(3) of the Independent Commission Against Corruption Act 1988 (NSW), and categories 1 to 4 of the Notice served on the State were also oppressive given their breadth, likely searches across State agencies, estimated cost and tenuous...

Court Disposition

The first and third defendants' motions to set aside the Notices to Produce were granted, and the plaintiff was ordered to pay their costs of those motions.

Orders

  • ['The Notice to Produce dated 26 February 2018 served on the first defendant is set aside.' 'The Notice to Produce dated 26 February 2018 served on the third defendant is set aside.' 'The Plaintiff is to pay the costs of the first and third defendants in respect of the Notices of Motion filed 23 March 2018 by those...