Dunstan v Human Rights and Equal Opportunity Commission

[2004] FCA 1137

FEDERAL COURT OF AUSTRALIA

Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 1137

PRACTICE AND PROCEDURE – subpoenas – leave to issue – whether subpoenas seek production of documents of potential relevance – criteria for grant of leave – utility to requesting party – leave refused.

Federal Court Rules, O 27A r 2

Waind v Hill [1978] 1 NSWLR 372 cited
Commissioner for Railways v Small (1938) SR (NSW) 564 cited
Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101 cited
Hudson Timber & Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 cited

COLIN GEORGE DUNSTAN v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, HENRY PRICE, DONALD BARTLEY, JOHN GROWDER, GEOFFREY SEYMOUR AND COMMONWEALTH OF AUSTRALIA

ACD 30 of 1997

LANDER J
2 SEPTEMBER 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 30 OF 1997

BETWEEN:

COLIN GEORGE DUNSTAN
APPLICANT

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

HENRY PRICE
SECOND RESPONDENT

DONALD BARTLEY
THIRD RESPONDENT

JOHN GROWDER
FOURTH RESPONDENT

GEOFFREY SEYMOUR
FIFTH RESPONDENT

COMMONWEALTH OF AUSTRALIA
SIXTH RESPONDENT

JUDGE:

LANDER J

DATE OF ORDER:

2 SEPTEMBER 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application for leave to issue the subpoenas is refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 30 OF 1997

BETWEEN:

COLIN GEORGE DUNSTAN
APPLICANT

AND:

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENT

HENRY PRICE
SECOND RESPONDENT

DONALD BARTLEY
THIRD RESPONDENT

JOHN GROWDER
FOURTH RESPONDENT

GEOFFREY SEYMOUR
FIFTH RESPONDENT

COMMONWEALTH OF AUSTRALIA
SIXTH RESPONDENT

JUDGE:	LANDER J
DATE:	2 SEPTEMBER 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application filed by the applicant on 19 August 2004 under O 27A r 2 (2) of the Federal Court Rules for leave to issue two subpoenas for the production of documents.

2. This matter is listed for trial on 20 September 2004.  Ordinarily, an application of this kind would be heard by the trial judge but he is on leave and out of the country.  In these circumstances, the Registrar referred the matter to me.

3. I have considered the application on the papers and without calling upon the parties to whom the subpoenas, if issued, would be addressed or the respondents.

4. The first subpoena is addressed to the Manager of Telstra Australia.  The documents required to be produced pursuant to that subpoena are:

   ‘The documents and things you must produce are as follows:

   1.Details of incoming telephone calls made to the home phone number of Colin and Sokkha Dunstan (Canberra Area…) on 17^th December 2003, including:

   (a)       Start and end time of each call,
   (b)       Telephone number from which each call originated,
   (c)       Address of each originating telephone number, and

   (d)Name in which the account of the telephone service of each originating call is held.’

5. The second subpoena is addressed to the Secretary of the ACT Sentence Administration Board.  That subpoena requires the Secretary to produce numerous documents described in:

   (1)a letter from the Senior Director, Legislation and Policy Branch of the ACT Department of Justice and Community Safety;

   (2)a facsimile from the ACT Sentence Administration Board; and

   (3)       a letter from a solicitor acting for the ACT Sentence Administration Board.

   Additionally, minutes of two meetings of the ACT Sentence Administration Board are sought to be produced.

6. In order to consider the grant of leave for the issue of the subpoenas, it is necessary to understand the issues between the parties and the framework within which the litigation is being conducted.

7. The applicant is currently imprisoned at Goulburn Correctional Centre in New South Wales.  He instituted the present proceedings on 22 April 1997.  His claims are contained in an amended statement of claim which was filed by the applicant with leave of the Court given on 13 November 1998.

8. The proceedings are brought against six respondents.  The first respondent is the Human Rights and Equal Opportunity Commission (the Commission).  The Commission’s involvement in the matter stems from a written complaint lodged by the applicant with the Commission on or about 17 September 1993.  The complaint alleged racial discrimination, sexual discrimination and sexual harassment by a fellow employee in the applicant’s previous place of employment over a ten year period (the complaint). 

9. On 2 April 1997, the Commission wrote to the applicant advising him of a decision of the Sex Discrimination Commissioner not to continue with investigations into the complaint.  The Commission had, according to the applicant, been provided with a report from an officer of the Commission on 26 March 1997, which the applicant says contains misleading and or false information.  The applicant did not seek a review of that decision.

10. The applicant also claimed that he was subsequently advised by the Commission to lodge an application with Comcare for damage sustained as a consequence of the matters particularised in the complaint.  The application with Comcare was rejected both at first instance and after an internal review into the application.  The complaint lodged with the Commission was subsequently amended to incorporate an allegation of disability discrimination by Comcare in its assessment of the applicant’s application for compensation.  The applicant subsequently appealed Comcare’s rejection of his application in the Administrative Appeals Tribunal.  The appeal was dismissed on 28 June 1996.

11. In respect of the Commission’s conduct, the applicant now seeks orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in relation to the Commission’s alleged failure to take steps under the Sex Discrimination Act 1984 (Cth). The applicant pleads that the Commission’s conduct described above, resulted in a breach of the rules of natural justice; that there was no evidence to justify the making of the decision to cease the investigation; and that the decision was an improper exercise of power conferred on the Commission. The last ground of review embraces more particular grounds of failing to take into account relevant considerations and taking into account irrelevant considerations.

12. The applicant’s case against the second to fifth respondents is based in defamation.  The applicant asserts that EASACT Australia Pty Ltd (EASACT) was contracted by the sixth respondent, the Commonwealth of Australia, to provide services in connection with an ‘employee assistance program’.  The second respondent is said to be an agent of EASACT.  The second respondent, on the applicant’s case, was approached by the third respondent, a member of the Commonwealth public service, to provide assistance in respect of the applicant and his complaints.  The defamatory statements are said to be contained in communications subsequent to that request that were either made or republished by the third to fifth respondents.  The applicant pleads that the words in the communications referred to:

    ‘…  in their natural and ordinary meaning were understood to mean that the applicant was:

    (1) managerally inept;
    (2) incompetent;
    (3) a disruptive influence within the workplace;
    (4) a troublemaker;
    (5) potentially violent.’

13. It is pleaded that the words in their natural or ordinary meaning and or by way of innuendo were false and that the relevant respondents knew the statements were false and / or were recklessly indifferent to their falsity. 

14. Additionally, the applicant claimed against the third, fourth and fifth respondents for misfeasance in a public office.  The third, fourth and fifth respondents were the applicant’s superior officers at his previous place of employment and were public servants of the Commonwealth of Australia.  The misfeasance is said to arise by virtue of the third, fourth and fifth respondents’ publication of false and misleading information in respect of the complaint lodged by the applicant with the Commission. 

15. The applicant claims various relief including a declaration that the decision of the Commission to cease investigations into the complaint is null and void and seeks an order preventing the Commission and the third to sixth respondents from taking any action to enforce the decision.  The applicant also claims damages including aggravated and exemplary damages, costs and interest.

16. The application for leave to issue the subpoenas was accompanied by an affidavit sworn by the applicant on 12 August 2004.  In that affidavit, the applicant deposes:

    ‘3.There is a prima facie case that the ACT Sentence Administration Board has acted well beyond its statutory powers.  Further, there has been active concealment by the ACT Sentence Administration Board of documents that evidence these excesses.

    4.The Annexure marked “A” to this affidavit is a true copy of an affidavit filed in the NSW Administrative Decisions Tribunal with a letter dated 3 May 2004 from the ACT Government Solicitor, stating among other things:

    a.“… I represent the Secretariat of the Sentence Administration Board of the ACT”.

    b.“The outcome of this application for review is of particular interest to my client …,… because in this particular case my client was coincidentally involved in the process by passing the documents in question to the NSW Corrective Services.”

    5.The ACT Sentence Administration Board is empowered to make decisions about parole for ACT prisoners serving relevant sentences.  It has no statutory power to act as advocate for persons seeking to prevent ACT prisoners from undertaking rehabilitation programs under the management of the NSW Department of Corrective Services.

    6.The ACT Sentence Administration Board also has no statutory power to extend the rights of victims of “relevant offences” to any others, even in situations where those others may assert an interest in preventing the rehabilitation and parole of an ACT prisoner.

    7.The ACT Sentence Administration Board also has no statutory power to extend the rights of victims of “serious offenders” to any others, even in situations where those others may assert an interest in preventing the rehabilitation and parole of an ACT prisoner who is not a “serious offender”.’

17. In respect of paragraph 4 of the applicant’s affidavit, Annexure A itself annexes a letter received by New South Wales Corrective Services, from a solicitor acting for ACT Corrective Services.  That letter describes an application made by the applicant for the disclosure of New South Wales Corrective Services documents pursuant to the Freedom of Information Act 1989 (NSW) (the FOI Act).

18. The letter puts forward a number of points said to be relevant to withholding the documents from disclosure under the FOI Act. In particular, it is suggested that the documents sought to be obtained by the applicant contain sensitive personal details of victims of crime. The letter simply conveys points which could be raised by New South Wales Corrective Services in opposing an application under the FOI Act.

19. The applicant then deposes to a phone call received by his wife in December 2003, presumably in relation to the proposed subpoena addressed to the Manager of Telstra.  He continues:

    ‘8.       The phone message to my wife on 17^th December 2003 shows someone with seemingly malicious intent was well aware both of her unlisted phone number, and the timetable for notification of the decision made after the “passing [of] documents in question to the NSW Corrective Services” by the ACT Sentence Administration Board.  Please note that the anonymous caller also commented upon the granting of parole – implying prior knowledge, or equal confidence, in their ability to also manipulate that decision making process  …’

20. The applicant states in his affidavit that the documents required to be produced pursuant to the proposed subpoenas are sufficiently particularised to avoid the addressees having to make a judgment on whether a particular document falls within the scope of the subpoena.

21. I also gave the applicant an opportunity to provide additional written submissions in support of the application.  The applicant provided further material which I received on 30 August 2004.

22. The additional documentation primarily consisted of correspondence passing between the applicant and the ACT Department of Justice and Community Safety in respect of another application by the applicant under the Freedom of Information Act 1989 (ACT).

23. Also included were copies of a Notice of Motion filed by the applicant, a supporting affidavit and a ‘Draft Further Claim’.  The Notice of Motion seeks the following orders:

    ‘1.The Applicant may observe Direction Hearings via video link to be able to consult with and instruct his legal representative.

    2.The hearing of new matters arising since commencement of proceedings, the draft pleadings of which are annexed to the affidavit of the applicant filed in support of this Notice of Motion be expedited.

    3.That the matters in previous pleadings be heard after the expedited hearing, the subject of Order 2.’

24. The Notice of Motion purports to include in the heading a ‘seventh respondent’, the ‘ACT Government’.  The ‘ACT Government’ or the Australian Capital Territory cannot be made a party to these proceedings simply by adding it to the heading of the document.

25. The new matters in paragraph 2 of the Notice of Motion are referred to in the affidavit as a claim for false imprisonment.  The Draft Further Claim also complains about the applicant’s failure to be permitted to undertake a rehabilitation course.  I think that the applicant wishes to amend the Statement of Claim to raise these mew matters against a new party and have them dealt with and decided before the matters presently listed for trial are considered.

26. That Notice of Motion has not been heard.  I will not comment on the prospects of success of joining an apparently unconnected common law claim to these proceedings.  That is a matter for the trial judge.  The application for leave to issue the subpoenas must be considered on the pleadings as they now stand.

27. The subpoena process has been described as consisting of three distinct phases.  In Waind v Hill [1978] 1 NSWLR 372 at 381, Moffitt P identified the following stages:

    1.        The witness must produce the documents to the court, not to the parties.

    2.The court decides whether or not to allow either or all of the parties to inspect them before the trial; and

    3.        If a party tenders them in evidence, the court determines whether they are admissible.

28. It is at the first stage that objections to the validity of a subpoena are ordinarily taken.  An objection to production does not mean that the addressee need not comply with the subpoena.  The addressee must respond to the subpoena but can on the return of the subpoena object to production and or inspection of any documents brought into court:  Commissioner for Railways v Small (1938) SR (NSW) 564 at 574. It follows that, in the normal course, leave will be granted to issue a subpoena and any objections will be dealt with on the return of the subpoena.

29. However, leave to issue a subpoena for the production of documents should not be given unless the documents, on their face, have some potential relevance to the issues in dispute between the parties.  The issues in dispute are to be deduced from the pleadings as they presently stand which identify the parameters of the claims and defences of the parties. 

30. In Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101, French J said at [8]:

    ‘It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena.  Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation.  The assistance that the requesting party may derive from the production of such documents must be taken into account.  Case management considerations are also relevant.  A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave.  Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.’

31. It is impossible to identify any potential relevance in the telephone records in the custody of Telstra and the documents held by the ACT Sentence Administration Board to the issues raised on the pleadings.  It would appear from the applicant’s supporting affidavit that he seeks the production of telephone records from Telstra so that he may identify the phone number and address from which the phone call to his wife on 17 December 2003 emanated. 

32. The phone call, the identity of the caller and the caller’s knowledge, have no relevance on the pleadings as they stand.  No legitimate forensic purpose will be served by requiring the production of Telstra’s phone records:  Hudson Timber & Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 at [7].

33. In respect of the proposed subpoena addressed to the ACT Sentence Administration Board, it would appear the applicant seeks production of documents in order to establish that there is improper interference with either his imprisonment or his application for the disclosure of documents under the FOI Act. Those matters have no relevance to the current proceedings.

34. In light of these matters, I am satisfied that the subpoenas are so lacking in potential relevance that there is no justification for leave being granted.

35. I refuse the application for leave to issue the subpoenas.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:             2 September 2004

Counsel for the Applicant:	The Applicant did not appear
Counsel for the First, Second, Third, Fourth, Fifth and Sixth Respondents:	The First, Second, Third, Fourth, Fifth and Sixth Respondents did not appear
Date of Hearing:	2 September 2004
Date of Judgment:	2 September 2004