AZ v DQ

[2006] NSWSC 383

CITATION:	AZ v DQ & Anor [2006] NSWSC 383
HEARING DATE(S):	29/03/06 30/03/06
JUDGMENT DATE :	5 May 2006
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 26
LEGISLATION CITED:	Limitation Act 1969
CASES CITED:	Warran v Coombs 23 ALR 405 RTA v Connolly (2003) 57 NSWLR 310
PARTIES:	AZ - Plaintiff DQ (as Legal Personal Representative of the Estate of the Late PC) - First Defendant State of NSW - Second Defendant
FILE NUMBER(S):	SC 20013 of 2002
COUNSEL:	Mr B J Gross QC with Mr S Dixon - Plaintiff Mr G W Moore - Second Defendant
SOLICITORS:	Carrroll & O'Dea Solicitor - Plaintiff I V Knight Crown Solicitor - Second Defendant
LOWER COURT JURISDICTION:	Supreme Court (Master)
LOWER COURT JUDICIAL OFFICER :	Master Harrison
LOWER COURT DATE OF DECISION:	18/05/2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

5 May 2006

No: 20013/2002

AZ - Plainitff

v

DQ (as Legal Personal Representative of the Estate of the Late PC) – First Defendant

State of New South Wales – Second Defendant

JUDGMENT

1 This is an appeal and cross appeal from a decision of Master Harrison given on 18 May 2005. The learned Master was, in turn, reviewing a decision of Assistant Registrar Howe given on 26 October 2004. The parties to the appeals are the Plaintiff represented by Mr B Gross QC with Mr S Dixon, and the Second Defendant, State of NSW, represented by Mr G Moore. Mr Moore also represented the Commissioner of Police.

2 The matter at issue before the Assistant Registrar and before the Master concerned the production of documents produced or liable to be produced under two subpoenas issued on 13 November 2002, one addressed to the Director General NSW Department of Education and Training and the other to the Commissioner of Police.

3 In the action, the Plaintiff, who was born on 28 February 1950, claims damages for psychological and psychiatric injuries sustained as a consequence of repeated acts of sexual assault committed by a teacher (PC), whilst he was a student at Sydney Boys High School from 1964 until 1968. Of course it should be made clear that at this stage the Plaintiff’s assertions amount to no more than untested allegations.

4 The action was commenced on 15 January 2002. Its success, inter alia, depends upon the Plaintiff obtaining relief under either s58 or s60G of the Limitation Act in order to defeat a defence raised by the Defendants. He has applied for such relief and, for the purposes of the application, issued and served the subpoenas now under consideration.

5 The subpoena addressed to the Director General required production of:

“All documents, correspondence, witness statements general statements, file notes, memoranda, photographs, investigations and reports compiled by the Case Management Unit in relation to the conduct, behaviour and activities of Mr William Charles Lucan-Roberts, formerly a teacher at Sydney Boys High School.”

6 The subpoena addressed to the Commissioner of Police required:

1. All records, documents, files, statements, notebook entries, charge sheets and other documents in relation to charges against William Charles Lucan-Roberts (born 9 December 1938) – CNI ref: 692390660 – arising out of an offence on 31 October 1964.
2. All notebook entries and statements taken by Senior Constable Sencon Ratjens of the Child Protection Enforcement (H8582140) in the course of his investigations of offences involving William Charles Lucan-Roberts;
3. All other records, documents, files, statements, notebook entries, charge sheets and other documents in relation to William Charles Lucan-Roberts (born 9 December 1938) including a list showing all offences in relation to which he had been questioned, in relation to which he had been charged and in relation to which he had been convicted, and showing the nature of the penalty ordered in respect of any such conviction.”

7 In order to understand the basis upon which the Plaintiff contends that he has a legitimate forensic purpose in seeking to require production of such a range of documents, it is important to record that in late 1999 and early 2000, PC (a pseudonym for William Charles Lucan-Roberts) was charged with a total of 67 offences involving sexual assaults upon students of Sydney Boys High School in the period of 34 years from 1964 to 1998 whilst he was a teacher at the school from 1964 until 1998. Altogether, some 10 pupils including the Plaintiff were alleged victims. PC himself committed suicide on 25 March 2000 and the action has been continued against his legal personal representative DQ.

8 The affidavit sworn by solicitor Mr Peter Bowe, representing the Commissioner of Police, on 25 October 2004 indicates that the offences for which PC was charged allegedly occurred between 31 October 1964 and 1 August 1999.

9 The affidavit also indicated that a police strike force was established to investigate the activities of PC. The affidavit identified documents liable to be produced under the subpoena addressed to the Commissioner as follows:

“The documents that are held by the NSW Police service include

· Statements of the 10 victims including audio recordings of interviews by Police with some of those victims;

· Statements by investigating police in respect of the 67 charges laid by the NSW Police Service;

· Various documents seized from the premises of PC pursuant to the execution of a search warrant.

· Statements of various people which were intended to be used as corroboration, tendency and propensity evidence in the criminal proceedings.

· Daily running sheets of the investigations carried out by various members of the strike force,

· Copy of the Fact Sheet prepared for PC’s court appearance, copies of the charges brought against PC, (in respect of Victims 1,3,4,5 and 6). COPS entries relating to the investigation;

· Birth certificates of victims, marriage certificate of the Plaintiff, photographs of various location where the offences are alleged to have occurred, photographs taken by police of exhibits seized;

· Medical records seized under search warrant relating to the Plaintiff and Victim No 7

· Terms of reference, progress reports and investigation plan relating to the entire investigation.

· Documents obtained from the Department of Education;

· Banking records of PC and various Telstra records;

· Correspondence between PC and the Plaintiff;

· Video and audio tapes of various interviews conducted by Police Officers (PC declined to be interviewed by the Police) and searches conducted under the authority of search warrants;

· Translation of various documents from the Greek language to the English language.

In answer to the 2002 subpoena the Commissioner of Police produced to the Court a bundle of COPS Events sheets, the fact sheet relating to charges involving the Plaintiff, Victims 3,4,5 and 6 and Police Statements in respect of those victims. In relation to Victim 3 the statements produced deleted any reference to the identity of Victim 3 as this Victim had consented to material being produced on condition that his identity not be disclosed. A similar procedure was adopted in respect of witnesses for this Victim. Those documents were edited so that the identity of Victims 2,3,7,8, 9 and 10 were not disclosed in those documents.”

10 Many documents have been produced to the Court under the two subpoenas and the Plaintiff has already had access to some of them. Some documents produced have been edited by the deletion of names, a circumstance which obviously materially reduces their utility, a matter highlighted by Mr Gross in his submissions. It has not been suggested by either the Director General or the Commissioner that the subpoenas are oppressive in the sense that there is any difficulty identifying the documents required to be produced or in collecting them.

11 Before Assistant Registrar Howe was an application to set aside both subpoenas. According to his reasons for decision the Director General based his application upon the proposition that the subpoenas lacked a legitimate forensic purpose while the Commissioner relied, both on this ground and others, “including that the subpoena was “a fishing expedition”, that the range of documents sought was too broad and (perhaps somewhat curiously as the Commissioner was not a party to the litigation) that the subpoena was a substitute for Discovery”.

12 The proceedings before the Assistant Registrar were complicated by the fact that the Plaintiff, in 2004, issued further subpoenas to the Director General and the Commissioner of Police. The Assistant Registrar held that both these subpoenas should be set aside and no further issue arises in respect of them. In relation to the 2002 subpoenas, he said:

“However, documents have been produced and, according to the Registry’s records, access has been granted. It is now too late to set aside a subpoena for production when the served party had produced documents and access has been granted. Save for the question of production of original documents by both applicants and the production of recently discovered documents by the Commissioner of Police, these subpoenas have been complied with. Any attempt to set them aside fails on the basis that the applications have been brought too late to have any efficacy. Accordingly, the verbal applications to amend the motions to include orders to set aside the 2002 subpoenas will be dismissed.”

13 There was a further complication in the hearing before the Assistant Registrar indicated by the following two paragraphs taken from his reasons:

“Finally, there is the verbal application of the plaintiff, made during the hearing, seeking orders that the recipients produce, in an uncensored form, copies of the documents produced to Court in compliance with the subpoena. It was an application made without the filing of a notice of motion and concerns compliance with a subpoena. It is a different matter to an application to set aside a subpoena.
If the plaintiff considers that neither the Commissioner of Police, nor the DET, have complied with subpoenas issued in 2002, then the appropriate procedure would be to file and serve a notice of motion, supported by affidavit evidence, and not by verbal application during an interlocutory hearing on a different question. The applicants came to Court to argue that subpoenas issued in 2004 be set aside. They were met with a rebuttal that called for them to comply with a subpoena issued in 2002. The question of compliance is a separate subject and should be argued by parties having sufficient warning of the matters to be agitated so that they may prepare appropriate responses. Accordingly, no order will be made about the production of original documents and that application will be dismissed.”

14 The first paragraph of the learned Master’s judgment sets forth the issues which she understood to be before her as follows:

“By notice of motion filed 23 November 2004 the plaintiff seeks: firstly, an order that the decision of Assistant Deputy Registrar Howe made on 26 October 2004 be discharged; secondly, an order that the second defendant and the Commissioner of Police produce to the court within seven (7) days in an unedited form the documents previously produced by them in an edited or obliterated form in response to the subpoenas served on them in 2002; thirdly, an order that the Commissioner of Police produce to the court the documents located by the Police in early 2004 which are additional to those previously produced to the court which fall within the schedule to the 2002 subpoena served on the Commissioner of Police, such documents to be in an unedited form; and fourthly, an order that the plaintiff be granted access to the documents produced by the second defendant and the Commissioner of Police.”

15 In the result the formal order made by the Master was:

“The decision of Assistant Registrar Howe made on 26 October 2004 insofar as it relates to the supply of unedited documents already supplied to the plaintiff; and insofar as it relates to paragraph (1) of the subpoena addressed to the Commissioner of Police is set aside otherwise the orders of Assistant Deputy Registrar Howe affirmed.

16 With great respect to the Master, the effect of her order is not entirely clear to me, as the relevant formal order of the Assistant Registrar does not, in terms, coincide with the Master’s order, nor does the Master, having expressly listed in paragraph 1 of her judgment the orders sought by the Plaintiff, indicate, except perhaps inferentially, her decisions upon them.

17 The appeal from the Master is by way of rehearing. There is no dispute as to the facts found by her but, as it seems to me, if I conclude that her decision upon those facts was wrong, I should correct it. (Warran v Coombs 23 ALR 405 at 424.

18 In relation to the Plaintiff’s application under the Limitation Act the Master (correctly in my opinion) observed:

“One of the issues will be what was the Department of Education’s knowledge, if any, of the actions of PC while employed as a teacher. While the plaintiff was the first victim in time, what was known in relation to victims 3, 5, 6, 7 and 8, whose period at the school overlapped with the plaintiff’s or closely related by time would be relevant? The plaintiff will also be obliged to negate any prejudice suffered by the second defendant due to the unavailability of witnesses and/or documentation.”

19 In light of the above passage it is not, I think, difficult to conclude as the Master did, that, on the face of it, there is a legitimate forensic purpose in the Plaintiff’s call for the documents covered by both subpoenas.

20 The principles, which I think encompass this case, I respectfully adopt from the judgment of Adams J in RTA v Connolly (2003) 57 NSWLR 310 at 315:

“ However, the obligation on the party calling on a subpoena to produce documents is ``to identify expressly and precisely the legitimate forensic purpose for which access to documents is sought'’: Supreme Court of New South Wales v Tastan (1994) 75 A Crim R 498 per Barr AJ (as he then was) at 504. Where that is done, I do not think that it is necessary that the party needs to demonstrate more than that there is a reasonable chance that the documents in question will serve the purpose so specified. In Tuxford , Brownie AJA (with whom the other members of the court agreed) pointed out (at [27]) that a fishing expedition is one in which a party is ``endeavouring not to obtain evidence to support their case, but to discover whether they had a case at all, or to discover the nature of the case of the defendant'’. If I may respectfully say so, this observation is as important as it is correct. A suspicion or belief of a party, stated from the bar table, that the documents called for would assist that party's case where there was nothing in the pleadings or the evidence supporting such a statement is not a sufficient identification of the forensic purpose: ``practically speaking, the opponents left it to us [the court] to work out for ourselves what the documents called for might show'’ (Brownie AJA at [28]) and accordingly, no proper basis for access was demonstrated.

In R v N (unreported, CCA(NSW), Full Court, 21 July 1998), the appeal concerned whether leave should be granted to appeal from a decision of a District Court judge to decline to decide whether or not access should be granted to material produced on subpoenas directed to a hospital and a high school to produce notes of counselling communications between an alleged victim of sexual assaults and the applicant who was on trial for these offences. Although the documents in question were produced, it was of course not known by the applicant whether anything in them might assist his defence. Even so, the chief justice noted that material of the character which is contained or probably contained within the documents to which access is sought is likely to be of significance, either directly or suggesting a course of inquiry with respect to … cross-examination [of the complainant]'’. It was not suggested that ignorance about whether, in the result, some assistance might be obtained by the applicant should be a reason for refusing access. The significance of the documents was obvious and the legitimate forensic purpose for which they were sought was also obvious.”

21 In my opinion the Master correctly concluded that it was “on the cards” that the material required by the subpoenas had a legitimate forensic purpose. I would, as she did, reject Mr Moore’s submission that the subpoenas involved “a fishing expedition”.

22 However, in relation to the subpoenas addressed to the Commissioner of Police, the Master decided to exclude documents relating to 4 of the 10 victims on the basis that the alleged offences relating to them were far removed temporally from the Plaintiff’s time at the school. This is true, but again it seems to me on the cards that statements given by or relating to these victims will assist the Plaintiff’s case that PC was a sexual predator (a matter not admitted by the Second Defendant), as to what the school knew, or perhaps should have known, regarding his activities and as to whether the school will suffer prejudice if the action against it proceeds. Moreover, as Mr Gross submitted there was, according to the evidence, but one overall police investigation which ultimately encompassed all victims. It would, I think, be somewhat unreal to contemplate excluding documents relating to some part of that investigation.

23 Accordingly, I find myself in disagreement with the Master regarding her decision to exclude documents relating to 4 victims. In my opinion, both subpoenas should be complied with, according to their terms, without any editing and the Plaintiff should have access to documents produced..

24 As has been recognised by the parties, so far as possible, the privacy of alleged victims of PC should be preserved. Some of them are already known to the Plaintiff and there may have been contact. I propose to order that there be no attempt to contact any alleged victim with whom the Plaintiff has not already been in communication without the leave of the court. I also propose to order that there be no publication of any material except for the purposes of the litigation which would identify, or tend to identify, any alleged victim.

25 As the Plaintiff has been substantially successful on the appeals, the Second Defendant should pay his costs. I will reserve liberty to apply in respect of any practical difficulty which arises hereafter in relation to the subpoenas.

26 I make there orders:

1. I set aside the orders made by Master Harrison.

2. I order that to the extent he has not already done so, the Director General of Education and Training comply with subpoena dated 13 November 2002 issued and served upon him herein by lodging with the court within 30 days, the documents required to be produced in unedited form.

3. I order that, to the extent he has not already done so, the Commissioner of Police comply with subpoena dated 13 November 2002 issued and served upon him herein by lodging with the court within 30 days the documents required to be produced in unedited form.

4. I give the Plaintiff access to all documents produced under the ` subpoenas including photocopy access.

5. I order that there be no publication of any material except for the purposes of the litigation which would identify, or tend to identify, any of the alleged victims of PC.

6. I order that without the leave of the Court there be no attempt by the Plaintiff to communicate with any alleged victim of PC with whom he has not been in communication prior to this date.

7. I order the Second Defendant, State of NSW, to pay the Plaintiff’s costs of these proceedings and of the proceedings before Master Harrison.

8. I give both parties liberty to apply on 48 hours notice to the other.

-o0o-