Battenburg v Chief Executive Officer & Secretary, Union Club

[2002] NSWADT 219

CITATION:	Battenburg v Chief Executive Officer & Secretary, Union Club [2002] NSWADT 219
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Andrew Battenburg RESPONDENT Chief Executive Officer and Secretary, Union Club
FILE NUMBER:	011069
HEARING DATES:	23/10/02
SUBMISSIONS CLOSED:	10/23/2002
DATE OF DECISION:	10/31/2002
BEFORE:	Britton A - Judicial Member; Bolt M - Member; Nemeth de Bikal L - Member
APPLICATION:	summons - set aside summons
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Legal Profession Act 1987
CASES CITED:	Hunt v Wark (1986) 40 SASR 489 Townsend v Chief Executive Officer, State Rail Authority [1999] NSWADT 104 Maylor (No 2) v Mid North Coast Area Health Service [2001] NSWADT 118
REPRESENTATION:	APPLICANT J Dupree, barrister RESPONDENT R Goot SC
ORDERS:	1. That the documents listed in the schedule to summons dated 26 June 2002 be produced to the Registry of the Administrative Decisions Tribunal on or before 10 am 4 November 2002.; 2. Access is granted to the Respondent from 11am 4 November 2002.; 3. The Applicant to pay the Respondent's costs for 5 July, 10 July, 17 July, 12 September and 23 October 2002 within 28 days in the sum as agreed or assessed with the Legal Profession Act 1987.; 4. Directions 1 and 2 made on 10 September 2002 are amended as follows: Respondent to file and serve any written material on which it seeks to rely on or before 11 November 2002; The Applicant to file and serve any material in reply by18 November 2002.

1 This decision concerns an application by Andrew Battenburg (the Applicant), to set aside a summons to produce documents. That summons was issued on 27 June 2002 under s 84 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) at the request of the Chief Executive Officer of the Union Club. The summons was directed to the Applicant.

2 Mr Dupree for the Applicant argues that the material sought is irrelevant to the facts in issue and is not sought for a proper forensic purpose. Mr Goot SC for the Respondent rejects that contention.

Background

3 By letter dated 3 September 2001 the President of the Anti- Discrimination Board (the President) referred to the Tribunal under s 91(1) of the Anti- Discrimination Act 1977 (the A-D Act) two complaints lodged by the Applicant on 18 July and 16 August 2001 respectively, having formed the view that these complaints could not be resolved by conciliation.

4 In the first complaint the Applicant alleged unlawful discrimination on the ground of disability and presumed homosexuality in the provision of goods and services by the respondent Club. In the second, he alleged that the Respondent had victimised him.

5 On 25 September 2001 with the consent of the parties Judicial Member Britton directed that the parties file and serve points of claim and defence and any evidence on which they sought to rely and further that the matter be set down for mediation. Consequential directions were made on 14 February 2002 varying the timetable set on 25 September 2001.

6 A mediation was held in June of this year but no settlement reached.

The summons

7 The schedule to the summons lists eight categories of documents sought by the respondent from the applicant:

1 Any correspondence between the Applicant and the Respondent recording, referring to or evidencing that the Applicant had a suite at the Union Club on a permanent basis at a rental of approximately $600 per week.

2. All documents recording, referring to, evidencing or relating to the order made against the Applicant in the Federal Court, as a result of which the Applicant was declared bankrupt on 19 May 1997 which is referred to in paragraph 7 of the Applicant's statement filed in the Administrative Decisions Tribunal on 25 February 2002 ('Applicant's Statement').

3. All documents recording, referring to, evidencing or relating to an appeal made by the Applicant against the order made against the Applicant in the Federal Court, as a result of which the Applicant was declared bankrupt on 19 May 1997 which is referred to in paragraph 7 of the Applicant's Statement.

4. All documents recording, referring to, evidencing or relating to any proceedings commenced by the Applicant against 'various parties, including my solicitors, for negligence' as referred to in paragraph 7 of the Applicant's Statement.

5. All of the newspaper articles referred in paragraph 10 of the Applicant's Statement.

6. Any statement provided by the Applicant to the Police in relation to the alleged assault referred to in paragraph 13 of the Applicant's Statement.

7. All documents recording, referring to, evidencing or relating to the court proceedings referred to in paragraph 13 of the Applicant's Statement.

8. All documents recording, referring to, evidencing or relating to the right of the Applicant to call himself ‘Lord Battenberg’.

8 This matter was listed before us for return of summons for 23 October 2002. At that hearing, Mr Dupree raised before the Tribunal for the first time his contention that the summons was in effect otiose, as proper service had not effected.

9 The Respondent submitted that that argument lacked merit and led evidence of the service of the summons. No evidence was led for the Applicant.

10 Having heard submissions from both parties the Tribunal gave an extempore decision rejecting the Applicant’s submission that the summons had not been properly served.

Motion that summons be set aside

11 Mr Dupree then moved that the summons be set aside on a number grounds.

12 First, it is submitted that as at the time the summons was issued (June 2002) no hearing date had been set and accordingly there were no issues joined between the parties.

13 This is an extraordinary argument for experienced counsel to make. At the time of issue the Applicant had instituted proceedings. Points of Claim and Defence have been filed. Once the respondent had filed Points of Defence issue was joined. The Points of Claim set out the key facts on which the Applicant relies. These include that the Applicant was a bankrupt; that he was the victim of an assault on the premise of the respondent; that he was asked to leave and resign from the respondent Club; that he was humiliated and discriminated against; that the discrimination and humiliation of him, among other things, took the form of the Club (or its officers) refusing to use his title and making impertinent inquiries concerning his sexual preferences and orientation. In a statement filed with the Tribunal on 25 February 2002 (the Applicant’s statement) he expands on the issues raised in his Points of Claim. The applicant’s evidence has been filed in readiness for the hearing to come.

14 The Applicant’s argument that there were no issues joined between the parties, ignores that approximately nine months prior to the issue of the summons, at the request of the Applicant, the President referred his complaint to the Tribunal under s 94(1) of the A-D Act in September 2001. Section 96 of that Act requires the Tribunal to hold an inquiry into each complaint so referred. That inquiry is now underway.

15 The Applicant’s assertion that the “issue between the parties have not been joined” is patently wrong and we reject it.

16 Second, it is asserted by Mr Dupree that the summons was not issued for any legitimate forensic purpose. Mr Dupree asserts that the Respondent’s true motive for seeking the documents was revealed in the letter dated 26 September 2002 from the Respondent’s solicitor to the Registrar of the ADT when he wrote: “Our client requires the documents referred to in the summons in order to finalise its statements.” We take this to be an argument that the respondent is on a fishing expedition for evidence.

17 In our opinion, that is incorrect. Most of the documents referred to in the summons are in fact referred to in the Applicant’s statement. The respondent ought be able to examine the documents.

18 The principles relating to subpoenae to produce are well-established. “Fishing expeditions” are not permitted. In Hunt v Wark (1986) 40 SASR 489 at 493 King CJ said:

A summons to witness to produce documents cannot be used for the purpose of mere “fishing”. There must be some reason to suppose that the documents sought will be capable of being used as evidence. On the material before the Judge there was no reason to suppose that the documents sought, even if they exist, would have any bearing on any issue capable of being raised by the evidence. To be the subject of a summons to witness… the documents must be ‘required for the purposes of evidence upon behalf of either party’. It is not necessary to construe those words with undue strictness so as to refer to only documents which are admissible evidence. The words are wide enough to include documents reasonably needed for the cross-examination of a witness, such as statements by the witness with respect to matters at issue in the case ( Maddison v Goldrick [1976] 1 NSWLR 651 ) whether or not they would ultimately be used in evidence to contradict the witness. I should think that they are also wide enough to include documents which may be used to refresh the memory of an intended witness and perhaps in other ways directly related to the presentation of the evidence in the case. The documents must be required, however, in some sense ‘for the purposes of evidence’. The subpoena process may not be used as a means of obtaining discovery of documents from the Commissioner of Police or as a means of obtaining information in the hope that it may lead to the ascertainment of witnesses or evidentiary documents: The Queen v White (1976) 13 SASR 276 , especially at pp 281-282.

19 Applying that analysis, at least one, and probably a number, of legitimate forensic purposes are self-evident in the summons. The Applicant has made a number of assertions concerning the Union Club and its officers. Counsel for the Respondent no doubt would seek to cross-examine the Applicant in relation to the documents sought. Each category of documents sought clearly relates to one or more of the allegations made against the Club in the Applicant’s statement of February 2002 or other assertions made by the Applicant in his statement. It is obvious that credit and credibility will be major issues in this case if it proceeds to a hearing. Even if the evidence sought goes only to credit, that would suffice to constitute a legitimate forensic purpose in the circumstances of this case.

20 Third, the Applicant asserts that the documents listed at paragraph 1 of the Schedule to the summons, namely correspondence between the Applicant and the Respondent referring to or evidencing that the Applicant had a rental suite, are documents that would be within the control and care of the respondent.

21 This argument strikes us as misconceived. The question is not what documents the Club has. The Respondent wants to have access to and to use for the purposes of evidence, the Applicant’s documents. This seems to us to be a legitimate forensic purpose. To repeat what we have said, given that the Applicant’s credit and credibility is a live issue in the case, and that these documents go to that question, amongst others, a legitimate forensic purpose has been demonstrated. In addition, there may be a question of damage suffered by the Applicant. The documents may be relevant to that issue.

22 Fourth, it is contended that, as it is not in issue in these proceedings that the Applicant is a bankrupt, those documents listed at paragraph 3 of the summons relating to the Applicant’s status, lack any legitimate purpose.

23 It is the Applicant himself who has raised the question of his bankruptcy. In paragraph 7 of his statement he says that he intended to appeal the decision of the Federal Court declaring him a bankrupt. As the Applicant appears to assert that his bankruptcy and intentions of appealing a decision of the Federal Court are relevant (a question which no doubt will be debated at the hearing) it would appear to be a live issue in the hearing and the documents sought go directly to the issue. We reject Mr Dupree’s argument on this point.

24 Fifth, it is argued by the Applicant that those documents listed at paragraph 4 of the schedule to the summons, namely documents relating to any proceedings against the Applicant’s previous solicitors, are not relevant to the facts in issue. Again, it appears that the Applicant seeks to bolster his own credit by making the reference to suing his solicitors. While it would seem evident that those proceedings (if they were ever undertaken) do not relate directly to these, the Applicant’s credibility and credit are issues. The documents sought are likely to be used to cross-examine the Applicant in relation to his credit. Given that the Applicant has himself raised the question in his statement, in our opinion a legitimate forensic purpose is plain.

25 Sixth, Mr Dupree argues that the newspaper articles referred to in paragraph 5 of the summons (and paragraph 10 of the applicant’s statement) relate merely to an assumption of fact on the part of the Applicant and can only go to credit.

26 Quite so. They do go to the Applicant’s credit. Once again, he has raised the issue himself in his statement apparently to bolster his own credit. The Respondent is entitled, therefore to have access to those documents so that his credit may be tested.

27 Seventh, counsel for the Applicant argues that any documents relating to the alleged assault and subsequent court proceedings listed in paragraphs 6 and 7 of the Schedule to the summons respectively, lack any forensic purpose as they are not relevant to the matters in issue.

28 Once again, it is the Applicant who has raised the question of an assault. If that is irrelevant to the proceedings – and it may be, but that is a question for the hearing itself – the evidence ought not to have been filed. If, however, it is relied upon by the Applicant, as appears to be the case at present, the Respondent, in our view, is entitled to the documents in order to test the Applicant’s evidence.

29 Finally, it is contended by Mr Dupree that any documents relating to the “right of the applicant to call himself ‘Lord Battenburg’” (Paragraph 8) are completely irrelevant to the issues raised by the Applicant’s complaint and are only sought for prurient interest.

30 We disagree. In paragraphs 26 and 27 of the Applicant’s statement the Applicant alleges that Mr Crouch, President of the Union Club, refused to refer to the Applicant as Lord Battenburg and instructed staff at the Club not to do so. It is obviously a point of major irritation to the Applicant and part of his general evidence that the Club systematically humiliated him and discriminated against him. He gives evidence that the Club refused to recognise his title and refused to accept him a person fit to be a member. If he not entitled to the honorific, or if he cannot show that he is, but that, nevertheless, he has insisted on representing himself to be a peer or a titled person, this would go directly to his credit. The legitimate forensic purpose is, in our opinion, obvious. Again, we reject the Applicant’s argument.

31 In our view, the Respondent has proven on the balance of probabilities that for each category of documents sought under the summons that the evidence sought is relevant and that there is a legitimate forensic purpose for seeking to have access to the documents.

32 Accordingly the Applicant’s motion to set aside the summons is dismissed.

Costs

33 The Respondent seeks an order for costs against the Complainant.

34 Section 114(1) of the A-D Act establishes a presumption in favour of each party bearing their own costs. The Tribunal may however order costs where it is of the opinion that there “are circumstances that justify it doing so.”

35 Section 88 of the Tribunal Act provides that costs will only be awarded "if [the Tribunal] is satisfied that there are special circumstances warranting an award of costs" (emphasis added). The power granted by that section is subject, however, to the provisions of any other Act. Thus the relevant provisions in the A-D Act govern the issue of costs in this case.

36 Accordingly the issue to be determined is whether are there any circumstances, which justify a departure from the ordinary rule enshrined in s 114(1).

37 It is useful at this point to briefly set out the chronology in respect of the summons. The summons was originally returnable on 5 July 2002. The documents were not produced to the Tribunal on or before that date. No appearance was made for the Applicant. The matter was relisted for return of summons on 10 July 2002 before Judicial Member Britton. Again the documents were not produced and no appearance entered for the Applicant. On that day the Tribunal ordered the Applicant to produce the documents listed in the summons on or before by 17 July 2002.

38 At the return of summons listed before the Registrar on 17 July 2002, Mr Dupree informed the Tribunal that the Applicant sought that the summons be set aside. The Registrar directed that the matter be stood over until after the mediation in the matter, which was listed for the following day.

39 Settlement was not reached at mediation and accordingly the matter was listed for a further case conference on 5 September 2002. No appearance was made for the Applicant. At that conference Judicial Member Britton ordered that the documents be returnable on 12 September 2002. No documents were so produced and Mr Dupree again sought that the summons be set aside on the grounds that the documents were not sought for any legitimate forensic purpose and the summons was oppressive.

40 At the hearing of 23 October 2002 the Applicant’s claim that he had not been properly served was raised before the Tribunal for the first time. (In a letter dated 4 October 2002, the Applicant’s solicitors, Russo and Partners notified the Respondent’s solicitors of that claim).

41 At the close of hearing on 23 October 2002 Mr Dupree announced that he had not brought any of the documents listed in the summons to the hearing and if the application was not granted he would need to seek further instructions.

42 In the interests of completeness we note that in a letter dated 26 September 2002 addressed to the Registrar of the ADT the Respondent’s Solicitors asserted that the Applicant had failed to answer the summons and suggested that in those circumstances it may be appropriate that the matter be referred to the Supreme Court under s 131 of the Tribunal Act. This is not the issue for determination in this decision. Here we confine ourselves to deciding whether the circumstances of this case warrant an order for costs against the Applicant.

43 The policy rationale underlying the presumption against costs in cases under the A-D Act is well known. As President O’Connor DCJ commented in Townsend v Chief Executive Officer, State Rail Authority [1999] NSWADT 104: “The access objectives of anti-discrimination legislation would be ill-served if the Tribunal did not ordinarily observe the strict rule set by s 114(1).” In Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118 [at 23] the Tribunal referred to the potential ‘chilling effect’ that may result if costs were too readily awarded against complainants.

44 In the normal course of events, in a case bought under the A-D Act, a party who unsuccessfully seeks to have a summons set aside would not be expected to bear the other party’s costs. But in our view, taken together, the circumstances of this case justify a departure from the presumption against costs.

45 First, the history of this matter reveals a persistent failure on the part of the Applicant to comply with an order to produce documents made under s 84 of the Tribunal Act and consequential directions made by the Tribunal. Second, to date the Applicant has not offered the Tribunal any explanation as to why he (or his legal representatives) failed to attend the return of summons listed for 5 and 10 July 2002 or the case conference of 5 September 2002.

46 Third, it was not until the sixth occasion the matter was listed before the Tribunal (including the 5 September case conference) that the Applicant raised what Mr Dupree characterised as the ‘threshold argument’ concerning service.

47 Fourth, the arguments, when eventually put for the Applicant on both the set aside application and service issue in our opinion were unsustainable and lacked merit.

48 It is apparent that the determination of the issues before the Tribunal was delayed as a direct result of the conduct of the Applicant. As a result the Respondent has been put to unnecessary expense and the Tribunal’s resources wasted.

49 Taking into account all relevant factors we are satisfied that the circumstances of this matter justify an order for costs. Accordingly we order that the Applicant pay the Respondent’s costs as agreed or assessed in accordance with the Legal Profession Act 1987 for 5 July, 10 July, 17 July, 12 September and 23 October 2002.

Timetable

50 On 10 September 2002 the Tribunal directed that the Respondent’s documents be filed and served on or before 31 October 2002 and the Applicant file in reply by 15 November 2002. Given the delay in this matter this timetable is amended to allow both parties an additional week.

Orders and directions

That the documents listed in the schedule to summons dated 26 June 2002 be produced to the Registry of the Administrative Decisions Tribunal on or before 10 am 4 November 2002.

Access is granted to the Respondent from 11am 4 November 2002.

The Applicant to pay the Respondent’s costs for 5 July, 10 July, 17 July, 12 September and 23 October 2002 within 28 days in the sum as agreed or assessed in accordance with the Legal Profession Act 1987.

Directions 1 and 2 made on 10 September 2002 are amended as follows: Respondent to file and serve any written material on which it seeks to rely on or before 11 November 2002; The Applicant to file and serve any material in reply by 18 November 2002.