"AZ" v "DQ"
[2005] NSWSC 473
•18 May 2005
CITATION: "AZ" v "DQ" & Anor [2005] NSWSC 473
HEARING DATE(S): 10 May 2005
JUDGMENT DATE :
18 May 2005JURISDICTION: Common Law Division
JUDGMENT OF: Master Harrison
DECISION: (1) 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 are affirmed; (2) Costs are reserved.
CATCHWORDS: Review decision of Registrar - access to documents
CASES CITED: Abram v National Australia Bank Limited [2001] NSWSC 916
Air Canada v Secretary of State for Trade [1983] 2 AC 394
Ali Tastan (1994) 75 A Crim R 498
Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd (NSWSC unreported, Master Malpass, 18 December 1992)
Brijeski v Sunbeam Corporation Limited (NSWSC unreported, Master Greenwood, 29 January 1997)
Carroll v The Attorney-General for New South Wales (1993) 70 A Crim R 162
Lakatoi Universal P/L v Walker [1998] NSWSC 470
Mariala Estates Limited v Athanasi & Ors [2001] NSWSC 1013
Modern Woodcraft Pty Ltd v Nott (NSWSC unreported, Young J, 7 March 1997)
National Employers Mutual General Insurance Association Ltd v Waind (1978) 1 NSWLR 372
New South Wales v Lepore; Samin Queensland; Richard v Queensland (2003) 212 CLR 511; (2003) 195 ALR 412; (2003) 77 ALJR 558; (2003) 24(3) Leg Rep 2; (2003) Aust Torts Reports 81-684; [2003] HCA 4
NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139
Worthington v Ibrahim [1999] NSWSC 868PARTIES: "AZ"
(Plaintiff)"DQ" as Legal Personala Representative of the Estate of the late "PC"
(First Defendant)State of New South Wales
(Second Defendant)FILE NUMBER(S): SC 20013/2002
COUNSEL: Mr B Gross QC with Mr S Dixon
(Plaintiff)Mr P Menzies QC
(Second Defendant)Mr G Moore
(Commissioner of Police)SOLICITORS: Mr R Algie,
Carroll O'Dea
(Plaintiff)Ms M Harakos,
Crown Solicitor
(Second Defendant)Mr P Bow
(Commissioner of Police)
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 20013/2002
LOWER COURT JUDICIAL OFFICER : Assistant Deputy Registrar Howe
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
20013/2002 - “AZ” v “DQ” AS LEGAL PERSONALWEDNESDAY, 18 MAY 2005
JUDGMENT (Review decision of Registrar
REPRESENTATIVE OF THE ESTATE OF
THE LATE “PC” & ANOR
– access to documents)
1 MASTER: 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.
2 The plaintiff is “AZ”. The first defendant is “DQ” as Legal Personal Representative of the Estate of the late “PC”. The second defendant is the State of New South Wales. From February 1963 to November 1968 the plaintiff was a school pupil at Sydney Boys High School. It is alleged that “PC” a school teacher at the school sexually assaulted him.
Review
3 There are some cases that are authority on the consideration that ought to be given on review. They are Beaufort Air-Sea Equipment Pty Ltd v Emhart Australia Pty Ltd (NSWSC unreported, Master Malpass, 18 December 1992); Brijeski v Sunbeam Corporation Limited (NSWSC, unreported, Master Greenwood, 29 January 1997); Westpac Banking Corporation v Abemond Pty Ltd and Westpac Banking Corporation v Cameron (NSWSC unreported, Santow J, 3 November 1994); Modern Woodcraft Pty Ltd v Nott (NSWSC unreported, Young J, 7 March 1997); Mariala Estates Limited v Athanasi & Ors [2001] NSWSC 1013; and Abram v National Australia Bank Limited [2001] NSWSC 916.
4 From these decisions, the approach I should take is that I should inform myself of all the material before the Registrar at the time when he made the decision and the Registrar’s decision. I should make my own decision based on the material before me after having the benefit of counsel’s submissions.
5 The plaintiff was a student at the school from February 1963 to November 1968. It is alleged that the State of New South Wales was responsible for the negligent acts and omissions of the Department of Education and various teachers including “PC” and other staff employed by it. The plaintiff alleges that between November 1964 and November 1968 “PC” took advantage of his relationship with him (the plaintiff) in order to engage in improper sexual conduct with the plaintiff and cause him to engage in improper sexual contact with “PC” and with other pupils and other young persons.
6 On 15 November 1999 “PC” was arrested and charged with 67 offences of a sexual nature involving 10 individuals. On 25 March 2000 “PC” committed suicide. The plaintiff was the first victim. Victims 1 (the plaintiff) 5, 7 and 8 had offences committed upon them in the same time frame. Victim 6 relates to 1969, which was one year later than the last of the offences against the plaintiff (1968). Victim 3 was in 1970, victim 4 was in 1975, victim 9 was in 1975/76, and victim 10 was in 1981/82. Victim 2 was in 1998/99. Victims 2, 4, 9 and 10 alleged assaults did not occur in or near the same time frame as the plaintiff and in my view are not relevant to the issues in this case.
7 Five of the victims have consented to the release of information. Four of these victims consented on the proviso that there is a non-publication order covering all evidence in the proceedings and that their identity is not released, only being referred to by pseudonym. The fifth victim consented on the condition that his name is omitted. One of the victims has stated that he does not wish his name or any information to be released. Section 11 of the Children (Criminal Proceedings) Act 1987 (NSW) does not appear to impact on these civil proceedings.
8 In any event, the plaintiff has indicated that he is prepared to take necessary steps to ensure that the access by him and his legal advisors, to the unedited documents, would be subject to an undertaking that there be no communication of the identification of the persons named in those documents without further order. In effect, the plaintiff proposed that there would be initial access to the documents, subject to confidentiality undertakings, and then after having conducted such inspection the plaintiff’s legal representatives would then confer with the second defendant’s legal representatives concerning any necessary conditions for further access or use. The plaintiff submitted that after this initial inspection both parties would then have a better understanding as to what extent further protective orders would be needed or what other conditions would need to be laid down. This procedure seems to be similar to that envisaged by counsel representing the second defendant (see t 26.10.04, 3.18-30).
9 The Police have located a further 15 boxes of documents to which access has not been granted. The subpoena to the Commissioner of Police seeks all records, documents, files, statements, notebook entries, charge sheets and other documents in relation to charges against “PC” (born 9 December 1938) – CNI ref: 692390660 – arising out of an offence on 31 October 1964; 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 “PC”; All other records, documents, files, statements, notebook entries, charge sheets and other documents in relation to “PC” 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 convictions.
10 The Department of Education has provided the plaintiff access to documents. Both the second defendant and the Police object to the production of documents sought in these subpoenae on the basis that the subpoenae firstly, amount to a fishing expedition as no legitimate forensic purpose has been established by the plaintiff; and secondly, that there is a need to preserve the confidentiality of the names of the victims. The documents which the plaintiff has already been given access have names deleted. As these documents have already been provided to the plaintiff it is too late now to object to their production. This was also the view taken by Assistant Deputy Registrar Howe.
11 However the plaintiff submitted that it is difficult to make sense of them and now seeks that the documents be provided without the deletions. So the issues before me are firstly, whether unedited documents should be made available to the plaintiff subject to confidentiality agreements; and secondly, whether the plaintiff is entitled to access the 15 boxes held by the Commissioner of Police in answer to the subpoena.
The Assistant Deputy Registrar’s decision
12 Assistant Deputy Registrar Howe in his decision stated:
- “This case concerns the actions of a teacher at a school concerning alleged sexual assaults on the plaintiff. Documents concerning one of the victims, to which access is sought, was not even born at the time the alleged offences took place. The plaintiff was at the school between October 1964 and March 1968. The person named in the affidavit of Peter Michael Bowe of 25 October 2004 is victim 2. He was born 23 August 1985 and was presumably subjected to similar offences between 26 January 1998 to 1 August 1999.
- From my reading of the authorities, a fishing expedition is where you are allowed to dangle a line in a pond to catch a fish but you are not allowed to trawl the pond to go over the catch to see whether or not you have one or one species of fish in the haul. It is for this reason then that, notwithstanding the access granted the plaintiff to the edited versions of the documents produced to date, access to the additional documents that have been produced in their unedited form will not be granted.
13 Assistant Deputy Registrar Howe denied access to additional documents produced and ordered that the producing parties were to retain custody of additional documents to be produced.
14 In relation to the unedited documents and the 15 boxes of documents identified by the Commissioner of Police as answering the subpoena, the plaintiff submitted that he has a legitimate forensic purpose for seeking access and that the documents are relevant to the matters in issue and it is legitimate for the plaintiff to build up an evidentiary mosaic (see Lakatoi Universal P/L v Walker [1998] NSWSC 470; National Employers Mutual General Insurance Association Ltd v Waind (1978) 1 NSWLR 372 and Worthington v Ibrahim [1999] NSWSC 868). The plaintiff submitted that where specific documents are known by parties and are already quarantined it cannot be said to be oppressive to produce them. According to the plaintiff’s Counsel the fish have already been caught (see Laurent v Law Society of New South Wales [1999] NSWSC 1182 at 15). The plaintiff further submitted that the documents would be relevant to issues such as tendency or similar fact evidence or credit. The plaintiff has not been granted an extension of time as yet. Issues such as similar fact evidence and credit (the plaintiff is deceased) are not relevant at this stage.
15 On 15 October 2002 the plaintiff filed a notice of motion seeking leave to file an amended statement of claim against the second defendant, the State of New South Wales. This motion has not yet been heard.
16 In the hearing of the limitation application the plaintiff has to establish whether he has a real case to advance. 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.
17 Gleeson CJ in New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; (2003) 195 ALR 412; (2003) 77 ALJR 558; (2003) 24(3) Leg Rep 2; (2003) Aust Torts Reports 81-684; [2003] HCA 4 stated that one potentially important matter was fault on the part of the school authority. The Chief Justice stated at [2]:
- “The legal responsibilities of such an authority include a duty to take reasonable care for the safety of pupils. There may be cases in which sexual abuse is related to a failure to take such care. A school authority may have been negligent in employing a particular person, or in failing to make adequate arrangements for supervision of staff, or in failing to respond appropriately to complaints of previous misconduct, or in some other respect that can be identified as a cause of the harm to the pupil. The relationship between school authority and pupil is one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behaviour of third parties even if such behaviour is criminal ( Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 at 265 [26]). Breach of that duty, and consequent harm, will result in liability for damages for negligence.”
18 The plaintiff referred to the three step process outlined in Waind in relation to the production and use of documents brought to court by a third party in answer to a subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, including whether or not permission should be given to party or parties to inspect the documents. The third step is the admission into evidence of a document in whole or in part, of its use, in the process of evidence being put before the court, by cross examination or otherwise. In these three steps, the stranger and the parties have different rights, and the function of the judge also differs.
19 Only steps one and two are relevant here. The first step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. For example, a subpoena for production may be set aside on the ground that it was improperly issued; or because it is being used for the purpose of discovery. Once it has been established that the subpoena has been validly issued and the documents are brought to court the judge in the exercise of his or her discretion can permit inspection of part or all of the documents the only limitation being that the documents, or some part of them, must have apparent relevance to the issues being litigated. The Police documents are not currently in the possession of the court registry but they were produced in court when the matter was before the Assistant Deputy Registrar.
20 The Commissioner of Police referred to Ali Tastan (1994) 75 A Crim R 498 at 304, NSW Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 and Carroll v The Attorney-General for New South Wales (1993) 70 A Crim R 162 at 181.
21 In Carroll the New South Wales Court of Appeal (per Mahoney AP) stated at 181:
- “There is a distinction between a subpoena which requires production of documents from a party in a proceeding and one which requires production of documents from a third party. To an extent, the court will allow to a party subpoenaing documents a somewhat broader latitude in obtaining for inspection documents from a third party which, being from a third party, could not have been obtained on discovery or otherwise in the proceeding; see Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573; Burchard v Macfarlane [1891] 2 QB 241 at 147-148, 251.
- But it is not the right of a party to litigation, merely by subpoenaing documents from a third party, to achieve inspection of them. As I have said, the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a “fishing expedition”, to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.”
22 There must be something beyond speculation, some common ground for belief that takes the case beyond a mere fishing expedition – see Lord Wilberforce in Air Canada v Secretary of State for Trade [1983] 2 AC 394 at 439 and 453 (quoted with approval in Tuxford [at 27]).
23 In Tastan Barr AJ stated at 505:
- “A subpoena to produce documents will have a legitimate forensic purpose if it appears to be “on the cards” that the documents will materially assist the person at whose request the subpoena is used: Alister (1984) 154 CLR 404 at 414, per Gibbs CJ; A-G (NSW) v Stuart at 681; 21. On the other hand, there will be no legitimate forensic purpose if all the party is doing is trying to get hold of the documents to see whether they may assist him at all in his case: Commissioner for Railways v Small (1938) 38 SR (NSW) 564; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250.”
It is my view that unedited documents should be provided to the plaintiff insofar as they relate to victims 1, 3, 5, 6, 7 and 8, subject to the parties agreeing to the terms of confidentiality. Other documents already produced should also be provided to the plaintiff in their unedited form.
24 There is a witness statement in evidence describing how “PC” spoke to students during his Greek and to a lesser extent his Latin classes about his views on sex. The critical issue is what knowledge, if any, did school authorities have at the relevant time. It is my view that the documents sought in paragraph (1) of the subpoena have a legitimate forensic purpose because it is “on the cards” that these documents will materially assist the plaintiff. But in my view the documents referred to in paragraphs (2) and (3) of the subpoena are not sought for a legitimate forensic purpose. The plaintiff is seeking those documents to see whether they may assist him in his case at all.
25 The result is that I have in part arrived at a different decision to that of Assistant Deputy Registrar Howe. The orders I make are that I set aside the decision of Assistant Deputy 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, otherwise the orders of Assistant Deputy Registrar Howe are affirmed. Costs are reserved.
The court orders:
(2) Costs are reserved.(1) 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 are affirmed.
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