Bertola v The Commissioner for Police
[2015] WASC 352
•15 SEPTEMBER 2015
BERTOLA -v- THE COMMISSIONER FOR POLICE [2015] WASC 352
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 352 | |
| Case No: | CIV:2239/2015 | 15 SEPTEMBER 2015 | |
| Coram: | PRITCHARD J | 15/09/15 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | The subpoena not be issued | ||
| B | |||
| PDF Version |
| Parties: | FRANCIS PETER BERTOLA THE COMMISSIONER FOR POLICE LES HORROCKS |
Catchwords: | Practice and procedure Subpoena Whether abuse of process Whether any legitimate forensic purpose Subpoena not to be issued |
Legislation: | Rules of the Supreme Court 1971 (WA), O 36B r 2 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE COMMISSIONER FOR POLICE
First Respondent
LES HORROCKS
Second Respondent
Catchwords:
Practice and procedure - Subpoena - Whether abuse of process - Whether any legitimate forensic purpose - Subpoena not to be issued
Legislation:
Rules of the Supreme Court 1971 (WA), O 36B r 2
Result:
The subpoena not be issued
Category: B
Representation:
Counsel:
Applicant : In person
First Respondent : Mr J M Misso
Second Respondent : Mr J M Misso
Solicitors:
Applicant : In person
First Respondent : State Solicitor for Western Australia
Second Respondent : State Solicitor for Western Australia
Cases referred to in judgment:
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160
R v Baines [1909] 1 KB 258
- PRITCHARD J:
(This judgment was delivered extemporaneously on 15 September 2015 and has been edited from the transcript.)
1 There are two applications before me today. First, Mr Bertola has sought that the Court's Registry issue a subpoena (the Subpoena) to the Commissioner of Police for the production of documents which contain information:
under the power and control of the Western Australian Police Force which, in any way, refer to or deal with the plaintiff, amongst other things, regarding his character or health (including his mental health) his criminal record (if any) or his reputation with regard to any matter, but particularly with relevance to the Firearms Licensing Branch of the WA Police Force.
2 The application for the issue of a subpoena is made in the course of proceedings commenced by Mr Bertola for a writ of mandamus, pursuant to O 56 of the Rules of the Supreme Court 1971 (WA) (RSC) (the judicial review proceedings). At the heart of those proceedings is a contention by Mr Bertola that the Commissioner for Police and Sergeant Horrocks, an officer in the Firearms Licensing Branch of the Western Australia Police Service, are each subject to a duty to provide information to Mr Bertola, namely information which was provided to them and which caused an officer in the Police Firearms Licensing Branch to require Mr Bertola to seek medical evidence as to his fitness to hold a firearms licence.
3 It will be immediately apparent that the documents sought in the subpoena appear, effectively, to reflect the material which Mr Bertola seeks to compel the Commissioner of Police and Sergeant Horrocks to provide, pursuant to the issue of a writ of mandamus, in the judicial review proceedings.
4 On the last occasion in which the judicial review proceedings were before me (on 25 August 2015), I made programming orders requiring the parties to file and serve affidavit material (which have now been filed) and to file outlines of submissions, so that the application for the writ of mandamus could be heard in due course. I will return to that issue below.
5 Insofar as Mr Bertola seeks the issue of the subpoena in the judicial review proceedings, I have observed in the course of interchange with Mr Bertola today that it is most unusual for a subpoena to be issued in the context of an application for judicial review. It is not necessary for present purposes to determine whether, in fact, it is possible to do so, because for other reasons, I propose to make an order that the subpoena Mr Bertola seeks to have issued should not be issued by the Court's Registry.
6 In my view, the reason why the subpoena should not issue is because it would be an abuse of the process of the Court for Mr Bertola to be able to obtain the documents that he seeks on the return of a subpoena when those are the very documents that he seeks pursuant to his application for a writ of mandamus, in the judicial review proceedings.
7 The Court clearly has jurisdiction as part of its inherent jurisdiction to control its process, and in my view, pursuant to O 36B r 2(2) of the RSC, to control the issue of subpoenas and to order that they not be issued.1
8 What constitutes an abuse of the Court's process was considered by Steytler P in Commonwealth of Australia v Albany Port Authority.2 His Honour noted:
In Walton v Gardiner, Mason CJ, Deane and Dawson JJ, speaking in the context of the power to stay proceedings as an abuse of process, said that the jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people". Order 1 r 3A of the Rules provides that the inherent power of the Court to control the conduct of a proceeding is not affected by the Rules. Of course, none of this means that a court can, in reliance upon inherent powers (or implied powers), ignore any conditions on the exercise of a particular power imposed by the Rules or by legislation, although it might dispense with the need for the filing of a formal application to set aside a subpoena when the court's attention has been drawn to its terms by an interested party and the circumstances are such as to indicate that to require a formal application by the person to whom the subpoena was addressed would simply waste time and money.
In R v Carroll, Gaudron and Gummow JJ said that "the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse". What is clear, however, is that the concept extends to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging"; "productive of serious and unjustified trouble and harassment"; invoked for an illegitimate purpose; or such as to "bring the administration of justice into disrepute". It is also clear that, while many cases of abuse arise from the institution of proceedings, any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. (citations omitted).3
9 In my view, it would be an abuse of the Court's process, in this case, for a party to seek the production, under a subpoena, of the very same documents that that party seeks to have provided to him pursuant to an application for a writ of mandamus for the production of those documents. That is because the subpoena effectively seeks to circumvent the requirement to make out a case for the issue of the writ of mandamus in the first place.
10 In addition, I am not satisfied that there would be any legitimate forensic purpose in the production of the documents under the subpoena, having regard to the fact that the proceedings in which the issue of the subpoena is sought are the judicial review proceedings. It is not apparent at all how the production of the documents to the Court under the subpoena would give rise to any line of inquiry relevant to the issues before the Court in relation to whether the writ of mandamus should issue. As I have said already, the subpoena seeks the production of the very documents which lie at the heart of the application for the writ of mandamus.
11 Finally, I observe that it would be an abuse of the Court's process for a subpoena to be issued other than for the purpose of obtaining evidence in the judicial review proceedings.4
12 In those circumstances, I propose to make an order that the subpoena filed by Mr Bertola at the Registry, which is addressed to the Commissioner of Police, not be issued.
13 The second application that I need to deal with is an application made by Mr Bertola orally today, by which he applies for me to return the judicial review application to the Registry so that it can issue a writ of mandamus to the Commissioner, to require the Commissioner to produce the documents to which that I have referred. Mr Bertola remains unhappy about the decision I made at the directions hearing on 25 August 2015 to decline to issue a writ of mandamus without first seeing affidavit material and hearing the parties in respect of whether that writ should issue.
14 I remain unconvinced by his submissions today that the appropriate course is for me to refer the application for a writ of mandamus to the Registry. The appropriate course is to proceed in accordance with the programming orders that I have already made, which required the parties to file the affidavit material (which they have done), and to file written submissions, and to hear the parties on a date to be fixed on the application for the writ of mandamus. I will make a determination on the day of hearing, or very soon thereafter, on the basis of the material before the Court on that date, as to whether the writ should issue. In those circumstances, there is no need for me to make an order in respect of the second application made by Mr Bertola today.
1Purnell Bros Pty Ltd v Transport Engineers Pty Ltd (1984) 73 FLR 160, 175.
2Commonwealth of Australia v Albany Port Authority [2006] WASCA 185.
3Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [20] - [21].
4R v Baines [1909] 1 KB 258, 261.
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