Edwards v Commonwealth of Australia
[2011] FMCA 446
•3 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EDWARDS v COMMONWEALTH OF AUSTRALIA & ORS | [2011] FMCA 446 |
| CONSUMER LAW – Practice – discovery by serviced of subpoenas on other parties – direction requiring prior leave of Court – broader discovery already achieved under Freedom of Information legislation – additional information sought – no apparent relevance to applicant’s pleading – form of subpoenas objectionable – leave refused. |
| Evidence Act 1995 (Cth), ss.135, 136 Federal Magistrates Act 1999 (Cth), s.45 Freedom of Information Act1982 (Cth), ss.22, 42 Trade Practices Act 1974 (Cth) |
| Commonwealth of Australia v Verwayen (1990) 170 CLR 394 Lawrance v The Commonwealth of Australia & Ors (No.3) [2007] FMCA 806 Mann v Carnell (1999) 201 CLR 1 Re Edwards & Secretary, Department of Health & Ageing [2011] AATA 147 |
| Applicant: | THOMAS CHRISTOPHER EDWARDS |
| First Respondent: | COMMONWEALTH OF AUSTRALIA |
| Second Respondent: | UNIVERSITY OF SYDNEY (ABN 15 211 513 464) |
| Third Respondent: | SECRETARY, DEPARTMENT OF HEALTH AND AGEING |
| Fourth Respondent: | MINISTER FOR HEALTH AND AGEING |
| Fifth Respondent: | DEPARTMENT OF HEALTH AND AGEING |
| File Number: | SYG 1463 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 3 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2011 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First, Third & Fourth Respondents: | Ms A Mitchelmore |
| Solicitors for the First, Third & Fourth Respondents: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Mr E Owens |
| Solicitors for the Second Respondent: | Minter Ellison Lawyers |
ORDERS
The applicant’s requests for leave for the issue of subpoenas are refused.
Costs in relation to today’s listing are reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1463 of 2010
| THOMAS CHRISTOPHER EDWARDS |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
First Respondent
| UNIVERSITY OF SYDNEY (ABN 15 211 513 464) |
Second Respondent
| SECRETARY, DEPARTMENT OF HEALTH AND AGEING |
Third Respondent
| MINISTER FOR HEALTH AND AGEING |
Fourth Respondent
| DEPARTMENT OF HEALTH AND AGEING |
Fifth Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Mr Edwards commenced a proceeding in April 2010 in the Federal Court, with an elaborate statement of claim seeking damages and other relief following upon events in 2003 and 2004 and later years, in which Mr Edwards’ position as a medical student under the Medical Rural Bonded Scholarship scheme at Sydney University was terminated, and he was denied further access to that medical school to continue his medical studies.
The proceedings were transferred to this Court by order of Moore J on 1 July 2010, and have been listed before me at several subsequent directions hearings, in which I have been attempting to move the matter towards a hearing appointed for three days in September this year. A very extended timetable was allowed to Mr Edwards to marshal his evidence in support, and the time for him to file his affidavits, as extended recently, is now 8 July 2011.
Mr Edwards’ efforts to locate relevant evidence have included making Freedom of Information requests under Commonwealth and NSW legislation directed at various Commonwealth entities, and also the University of Sydney.
Several FOI requests to the Commonwealth agencies, in particular the Secretary, Department of Health & Ageing, who is among the Commonwealth parties before me in the present proceedings, gave rise to proceedings in the Administrative Appeals Tribunal. Mr Edwards’ FOI requests and the responses to them were explained and addressed by Senior Member Britton in Re Edwards & Secretary, Department of Health & Ageing [2011] AATA 147. I do not need to set out the background which can be found in her judgment, but I note that she dealt with responses to a request which was in very broad terms, seeking “any information in any form held by the Commonwealth… or the department… in relation to the administration of the Commonwealth termed Medical Rural Bond Scheme (MRBS) and Bonded Medical places (BMP), whether held in documentary, electronic, email, file note or any other form.”
After exchanges with Mr Edwards, over 4000 documents were located and access was given, subject to exemptions claimed in relation to parts of these documents. They included documents concerning
Mr Edwards’ personal history. The exemptions were claimed under grounds of either legal professional privilege under s.42 of the Freedom of Information Act1982 (Cth) (“FOI Act”), or “irrelevance” to the terms of the request by reference to s.22 of the FOI Act.
In addition, Mr Edwards claimed that there were further documents relevant to his request, the existence of which had not been properly searched for by the Commonwealth agency.
After a hearing, which apparently included the taking of oral evidence from relevant decision-makers and submissions from Mr Edwards,
Ms Britton affirmed the decisions under review and gave reasons.
She was satisfied that it was more likely than not that no further documents exist that fall within the scope of the request, although she said that it was “not possible to exclude the possibility that some documents in addition to those located exist but cannot be found”.
In relation to legal privilege, she examined each document for which privilege was claimed, and was satisfied that each was created for the dominant purpose of giving or obtaining legal advice. She therefore held that the privilege claim was justified.
In the course of this ruling, it appears from paragraph 37 of her reasons, that she addressed an argument by Mr Edwards that there had been conduct by or on behalf of the Department of Health constituting waiver of legal professional privilege. She referred to the leading authority in the area being Mann v Carnell (1999) 201 CLR 1, and said: “it is obvious from the circumstances that a universal declaration of a general policy by government of the type made in this case could rarely, if ever, constitute a waiver of legal professional privilege”.
It appears to me that in that statement, Senior Member Britton was probably addressing an argument made by Mr Edwards which he has repeated to me. In this, he invoked general principles of estoppel applied in Commonwealth of Australia v Verwayen (1990) 170 CLR 394, and attempted to use them to overcome legal professional privilege in the present case. His argument drew upon what were said to be representations made to people generally, but also including
Mr Edwards, in publications concerning the MRBS scheme, to the effect that “the recruitment process for MRBS students should be equitable and transparent”. I agree with Senior Member Britton that, even accepting that such representations were made to Mr Edwards and relied upon by him, they could not in themselves carry any waiver of legal professional privilege in relation to documents covered by legal professional privilege, in particular, in relation to the documents for which legal professional privilege was upheld by Ms Britton.
These documents are itemised in a Schedule to Ms Britton’s decision, by reference to 2471 documents found in identified folios of files of the Department. Although Mr Edwards asked me to doubt whether
Senior Member had looked at them all, I have no doubts that she did do that. The descriptions of the various folios, in themselves, tend overwhelmingly to point towards the existence of legal privilege.
In relation to the relatively smaller number of documents in which
Ms Britton upheld the Department’s contention that parts of documents were not “relevant” to the FOI request, I am also satisfied that
Senior Member Britton inspected those documents and formed her own opinions about their relevance. She said, “I am satisfied that the material deleted from each of the documents would ‘reasonably be regarded as irrelevant’ to Mr Edwards’s request”.
During earlier directions listings in this matter, I have been concerned that Mr Edwards is at grave risk of over-complicating the proceedings, to the extent that he may lose sight of the real issues in the matter. Unfortunately, my invitation to him to try to focus his pleading did not achieve that outcome, and his current pleading is a “Second Further Amended Statement of Claim” which has 45 pages, 112 paragraphs, and possibly 43 separate causes of action.
The particulars of all his allegations all appear to me to rely upon factual contentions concerning particular events involving Mr Edwards and his personal efforts to pursue medical training at the University with the necessary Commonwealth backing. The relief sought includes damages, but also some administrative law remedies in relation to the exercise of administrative powers by both Commonwealth agencies and the University. It also includes causes of action in breach of contract, breach of the Trade Practices Act, unconscionability, fraud, negligence, and other causes of action.
To try to keep the matter within manageable limits, I withheld a general liberty to all parties to request the issue of subpoenas without the prior leave of the Court. I also appointed a directions hearing today where I would have a full morning available to examine whether any party should be given leave to request the issue of subpoenas. I directed that all proposed subpoenas be filed before today.
In effect, this was the occasion upon which issues of discovery could be addressed. Pursuant to that appointment, Mr Edwards, but not the other parties, has sought leave to issue two subpoenas. They are directed respectively at the University of Sydney and at the Commonwealth Department of Health & Ageing by its Proper Officer.
The subpoena addressed to the Commonwealth agency is in the following terms:
Books, Documents and things you must produce from your possession, custody or control
1.A copy of this subpoena
2.All the information that was identified but not returned I the schedules that the DHA produced know as SCHEDULE OF DOCUMENTS – FOI REQUEST No. 066/0809
3.Information for the cohorts of 2001 to 2005 of how many students were in medical rural bonded contracts for each cohort at the University of Sydney started medicine
4.Information for the cohorts of 2001 to 2005 of how many students at the University of Sydney were in medical rural bonded contracts for each cohort but did not complete the medical degree due to academic failure exclusion for misconduct, or electing to not continue in medicine.
5.I only seek copies
It is appropriate to consider whether I should grant leave to allow this subpoena to be issued, by reference to the general direction to this Court in relation to discovery, which is given in s.45 of the Federal Magistrates Act 1999 (Cth). I explained this context in Lawrance v The Commonwealth of Australia & Ors (No.3) [2007] FMCA 806:
3. A litigant in this Court does not have an automatic right to discovery. Federal Magistrates Act 1999 (Cth) s.45 gives what has been described by Driver FM in NAQR & Ors v Minister for Immigration [2002] FMCA 271 as a “rebuttable presumption in proceedings in this Court that discovery and interrogatories will not be permitted”, which I accept in the sense that there must be a justification for allowing discovery shown in the particular circumstances of the proceeding. The section provides:
45(1) Interrogatories and discovery are not allowed in relation to proceedings in the Federal Magistrates Court unless the Federal Magistrates Court or a Federal Magistrate declares that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
Among the matters to be considered, s.45(2)(a) specifically identifies the consideration of whether allowing discovery: “would be likely to contribute to the fair and expeditious conduct of the proceedings”.
In my opinion, it is appropriate in the present case to address the issuing of subpoenas from the same perspective as the exercise of powers concerning other forms of discovery, in circumstances where the proposed subpoenas are directed at the respondent parties in lieu of orders by way of discovery.
I have heard submissions today from Mr Edwards, and from counsel for the Commonwealth parties. The Commonwealth submits that I should refuse leave to issue the proposed subpoena on the basis, essentially, that it is clearly objectionable in form, and also that looking at the intent of the discovery sought by Mr Edwards, he is not seeking documents which the Court should assist by way of compulsory processes of discovery or subpoena.
It is clear from paragraph 2 of the subpoena that, in effect, Mr Edwards is asking the Court to do what he could not persuade the AAT to do, which is to give him access to the withheld parts of the documents located under the FOI request. That request encompasses all the conceivable documents which could bear upon Mr Edwards’ current proceedings. Indeed, in my opinion, the FOI request manifestly extended far beyond the issues in the present case raised by
Mr Edward’s pleading. Mr Edwards was not able to show me how any issue arises in the present case in relation to which documents would be held by the Commonwealth which would not have been encompassed by his FOI request.
This is a situation where, as in Lawrence, it is, in my opinion, appropriate for the Court to take into account that respondent parties have been engaged actively in procedures for discovery and production under the FOI Act, which encompassed procedures not normally required in relation to production on subpoenas, including a full merits review by an independent authority. The issues in the AAT in relation to legal professional privilege were essentially the same issues which would be addressed in this Court, if the Commonwealth was ordered to produce the documents to it and repeated its claims of legal professional privilege in relation to those documents, as was foreshadowed by counsel for the Commonwealth. In my opinion,
Mr Edwards has not pointed to any reason why the AAT’s conclusions about these claims should be doubted.
I can see no reason to doubt the reasoning followed by Senior Member Britton in relation to the Commonwealth’s claims for privilege in relation to these numerous documents. I have endeavoured to understand Mr Edwards’ arguments, which he said had developed since reading the Tribunal’s decision. I have taken into account all his submissions in that respect, but they do not persuade me.
I am not satisfied it would be fair or appropriate in the administration of justice in the present case, that I should allow the processes of the Court in relation to subpoenas to expose the Commonwealth to the additional expenses and a repetition of arguments about legal professional privilege in relation to voluminous documents, which, in my opinion, Mr Edwards has already enjoyed a sufficient opportunity to meet in the AAT. He had rights of appeal in relation to those proceedings to the Federal Court, but has not exercised them. I am not persuaded that these issues of privilege should now be reopened in the present proceedings under any procedures for discovery.
In relation to Senior Member Britton’s conclusions about the “relevance of withheld parts of documents”, I invited Mr Edwards to point to any document which was addressed in the AAT, which had relevance to the present claims and causes of action before me. He was not able to do that to my satisfaction.
Essentially his argument, as I understood it, was that he had been able to show in the AAT in relation to one or more documents which the Department claimed not to be able to locate, that the documents actually existed. Based on this experience, he submitted that the claims of the Commonwealth that parts of other documents located by it were not relevant might also be shown to be unfounded, and that he should therefore be permitted to subpoena them so that he could inspect these parts. It appears to me that this argument was probably addressed by Ms Britton, inter alia, by herself considering the relevance of the redacted parts of documents.
In my opinion, that argument does not satisfy me that it is appropriate for me to expose the Commonwealth to the further expense of engaging in that further process of discovery. I accept what appears to me to be a very thorough examination of these documents by the independent senior member of the AAT. In my opinion, the pursuit of this Freedom of Information request by way of the use of subpoena powers in this Court in the present proceedings would be oppressive to the Commonwealth parties, particularly since Mr Edwards has been unable to explain how the withheld parts of the documents might be relevant to the matter before the Court.
I therefore would not permit the issuing of a subpoena in terms of paragraph 2.
In relation to paragraphs 3 and 4, I pressed Mr Edwards to explain to me how documents containing the information referred to, assuming that this is how paragraphs 3 and 4 should be read, could assist him in his presentation of his case in this Court. I carefully listened to his submissions about this, doing the best I could to understand his arguments. It appears that he wishes to obtain officially sourced numerical information about how other students were dealt with at the University of Sydney Medical School at relevant periods, and apply this data in support of points concerning how he was treated. But the points which he envisages being able to make, are not points that I could see had any clear reference to his causes of action pleaded in this Court. Nor could I see any present prospect of this data, if it exists and can be located, being admitted as relevant probative material, at least to the extent that its tender was not likely to incur discretionary exclusion under ss.135 or 136 of the Evidence Act 1995 (Cth).
Endeavouring therefore to understand the merits of the proposed discovery under paragraphs 3 and 4, I had such difficulties understanding its potential benefits to Mr Edwards’ preparation of his case, that I would not exercise the Courts powers to assist such discovery. There are also clear formal defects in the form of paragraphs 3 and 4. If only, because they require the searching for information in documents that are not manifestly identifiable. In this respect, it was foreshadowed by counsel for the Commonwealth that it might be difficult for the lawyers assisting the Commonwealth parties to answer this subpoena without a great deal of time and effort, which the Court might be reluctant to order without clear forensic purpose.
As I understood him at the end of his submissions, Mr Edwards took account of those problems, and indicated that he would not press paragraphs 3 and 4 of this subpoena. As I understood it, he thought that he could engage in his own researches in relation to numerical and statistical data which he thought might help his case. My present ruling will not foreclose his engaging in those researches, and presenting the outcome in his affidavits. If he does so, then it will be necessary at the hearing to rule upon the admissibility of that material as evidence. Nothing that I have said in the present judgment should be taken as foreclosing Mr Edwards’ arguments and my future rulings in that respect.
For all the above reasons, I am not persuaded that I should give leave to Mr Edwards to procure the issue of the subpoena against the Commonwealth which he seeks today.
Nor, am I satisfied that any other order by way of discovery should be made against the Commonwealth parties. I note that both respondent parties have already filed a tender bundle of documents containing 245 folios of pertinent documents, with the aim of assisting both
Mr Edwards and the Court at the present and future stages of the proceedings. Of course Mr Edwards is not confined to that bundle when preparing his affidavits, and it is open to him to tender additional documents which he has obtained, whether under Freedom of Information or otherwise. Any additional documents should be attached to or exhibited with the affidavits which Mr Edwards must file in accordance with my previously directed timetable.
Turning to the proposed subpoena addressed to the University, it is in the following terms:
Books, Documents and things you must produce from your possession, custody or control
1.A copy of this subpoena
2.All the information that was identified but not returned by SCHEDULE OF DOCUMENTS – FOI REQUEST No. 066/0809
3.Information for the cohorts of 2001 to 2005 of how many local un-bonded non full fee students started medicine but did not complete the medical degree at your university.
4.Approximate information for the cohorts of 2001 to 2005 of how many local non full fee students started medicine but did not complete the medical degree, degree due to academic failure exclusion for misconduct, or electing to not continue in Medicine.
5.Approximate information for the cohorts of 1994 to 1999 of how HECS places were there for each year.
6.The approximate attrition rates per year in medicine, for repeating a year
7.The approximate attrition rates per year from the Medical degree.
8.Non full fee students started medicine but did not complete the medical degree.
9.Note medical degree/medicine refers to you the MBBS at the University of Sydney
10.Note I do not require originals of any document.
In paragraph 3 of the subpoena, Mr Edwards, in effect, wishes the University to look for the same documents which were withheld by the Commonwealth under the Commonwealth FOI processes, on assumptions that some or all of them might be found also in the files of the University. Understanding it in that light, there is a manifest oppressiveness in allowing such a subpoena to issue, in my opinion. The schedule of documents which was addressed in the AAT proceedings identified them by reference to folio numbers in Commonwealth files, not the University’s files. I am by no means persuaded by Mr Edwards’ argument that those representing the University would be readily able to correlate their documents, if they exist, with the documents on the Commonwealth files.
Moreover, for reasons which I have indicated above, I am not persuaded that Mr Edwards’ further efforts to have access to those documents should be supported by the use of any coercive powers of this Court, by way of further discovery in the present proceedings in relation to documents already available to him under FOI processes, whether directed at Commonwealth agencies or at the University.
In relation to the numerical and statistical information suggested in paragraphs 3 through to 8 of the proposed subpoena to the University, the concerns which I have pointed to above, both in relation to form and the investigations which appear to be required, or envisaged, under the Commonwealth subpoena appear in the present subpoena also.
As I understood him, at the end of submissions Mr Edwards accepted that information of the sort which he attempted to describe in paragraphs 3 and 5 might be more easily found by his own investigations of publicly available information, than by the legal representatives of the University in the present proceedings. As I understood him, he indicated that he would not press those paragraphs.
In my opinion, the remaining paragraphs of the proposed subpoena are clearly objectionable on their face, since they do not readily identify documents containing the required information, nor allow the identification of relevant documents in a manner which appears sufficiently comprehendible by the recipient of the subpoena in the present circumstances.
More significantly, I am not persuaded that discovery in relation to the indicated information, even assuming it could be located in its documents by the relevant persons on behalf of the University, has a sufficiently apparent relevance to the present proceedings to support the Court allowing its subpoena and discovery processes to be used to procure it.
Taking into account the concerns in relation to discovery which I pointed to at the start of this judgment, reflected in s.45 of the Federal Magistrates Act, I am not persuaded that any orders by way of discovery, whether under subpoena or otherwise, should be directed at the University in the present proceedings.
In my opinion Mr Edwards will be given a full and fair opportunity to present his case by reference to the documents he has already received discovery of under his Freedom of Information request in relation to the Commonwealth, and I am not persuaded that he has not also pursued similar opportunities in relation to the University’s documents. The matter should now proceed to a hearing in accordance with the directions I have already given.
POSTSCRIPT I note that after the interlocutory hearing which led to my giving the above judgment, Mr Edwards forwarded to my chambers a written submission supplementing his oral submissions, without the leave of the Court. He should understand that under recognised Australian court procedures, a litigant – whether self-represented or not – should not send substantive correspondence to a judge’s chambers without the prior agreement of the other parties, and, in the case of issues which have already been addressed at a hearing which has been concluded, not without the prior leave of the judge. In the present case, the additional submission would not have altered my opinions explained above.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate:
Date: 16 June 2011
0
5
4