Georges v Georges

[2024] NSWDC 402

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Georges v Georges [2024] NSWDC 402

Hearing dates:

18 July 2024, 26 July 2024, 1 August 2024, 8 August 2024

Decision date:

05 September 2024

Jurisdiction:

Civil

Before:

Wass SC DCJ

Decision:

See [88]

Catchwords:

CIVIL PROCEDURE – Notice of motion – Subpoena to Commissioner of Police (NSW) – Disingenuous assertion of lack of legitimate forensic purpose – Unfounded claim of oppression – Defamation – R33.4 UCPR – Indemnity costs ordered

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)

Cases Cited:

Bailey v Director-General of Land and Water Conservation [2009] NSWCA 100; 74 NSWLR 333

Bassal v Savills (NSW) Pty Ltd (No 3) [2017] NSWSC 911

Franks v Warringah Council [2010] NSWSC 1318

Lucas Industries Ltd v Hewitt (1978) 18 ALR 555; 45 FLR 174

Re Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) (No 2) [2021] NSWSC 1161

Category:

Costs

Parties:

Farah Georges (Applicant)
George Georges (Defendant)
Commissioner of Police (NSW) (Respondent)

Representation:

Counsel:
D. Sibtain SC / T. Senior (Plaintiff)
K. Smark SC (Defendant)

Solicitors:
Gadens (Plaintiff)
BlackBay Lawyers (Defendant)
Makinson d’Apice Lawyers (Commissioner of Police (NSW) (Respondent)

File Number(s):

2022/191186

Publication restriction:

Nil

JUDGMENT

Introduction 

1. The matter has been listed for a defamation trial, to commence on 16 September 2024.  

2. On 8 March 2024, the plaintiff issued a subpoena for production on the NSW Commissioner of Police (“the Commissioner”), a stranger to the litigation, calling for documents relating to the defendant in the proceedings, as particularised.  It was served on the Commissioner on 11 March 2024 (“the subpoena”).  The subpoena sought production by 20 March 2024.  

3. Between 18 March 2024 and 26 July 2024, the Commissioner produced documents in partial compliance with the subpoena.  

4. During that period, on 11 July 2024, the Commissioner filed a notice of motion seeking an order pursuant to R33.4 of the UCPR that the subpoena be set aside on two bases:

1. That the subpoena lacked a legitimate forensic purpose; and 

2. That the call for documents was oppressive.   

5. On 26 July 2024, I dismissed the Commissioner’s motion to set aside the subpoena on the basis that there was no legitimate forensic purpose in what remained to be produced.  The claim by the Commissioner, that the call for documents was oppressive, had earlier been abandoned. 

6. The plaintiff made an application for indemnity costs, citing unreasonable conduct by the Commissioner in response to the subpoena, unnecessarily causing the plaintiff to incur costs.  

7. The Commissioner submitted that there ought be no order as costs or alternatively that I make an order for costs in favour of the plaintiff on the ordinary basis from 18 June 2024.  

Legal Framework  

8. The importance of recipients of subpoenas complying with their obligations need not be gainsaid.     

9. In Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 570; (1978) 45 FLR 174 at 189, Smithers J (Bowen CJ and Nimmo J agreeing) explained:

The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence. 

10. The principles in determining whether a special costs order should be made were considered by the then CJ in Eq, Ward J in Re Earth Civil Australia Pty Ltd, RCG CBD Pty Ltd, Bluemine Pty Ltd, Diamondwish Pty Ltd and Rackforce Pty Ltd (all in liq) (No 2) [2021] NSWSC 1161 at [93] – [99]. Whether such an order will be made will be determined in the proper exercise of the Court’s discretion and guided by well-known principles.

11. In short, it is necessary for the issuing party to establish that an unreasonable stance was adopted by the recipient of the subpoena; where the position could not reasonably be argued or where the recipient was slow or delinquent in coming to a reasonable position, unreasonably causing the issuing party to incur unnecessary costs.  Unreasonableness is considered by the nature and timing of the actions taken.   

12. Relevant principles emerge from the authorities, as follows: 

1. The ordinary rule is that costs of the motion follow the event.  

2. It is reasonable for the recipient of a subpoena to seek a clear understanding of how the documents are relevant to the issue in the proceedings.   

3. It can be difficult to identify a point in time at which the recipient of a subpoena commences to act unreasonably.  It may be sufficient to identify occasions or instances where the response has not been particularly reasonable.  

4. Whilst the onus of establishing a legitimate forensic purpose rests with the issuing party, the recipient must hold a genuine view that there may be a lack of legitimate forensic purpose, if they are to resist production.     

5. The document storage practices of the recipient, and the ease with which they can comply with a subpoena, is a matter for them.  Those practices and the ease of compliance is relevant only to a claim of oppression.  It does not inform legitimate forensic purpose.  

6. The fact that relevant documents may be more difficult to find can never found a claim of lack of legitimate forensic purpose.  To make such a claim is not a proper way to respond to a subpoena. 

7. It is not reasonable to produce some documents, whilst citing a lack of legitimate forensic purpose for other similar documents which are known to satisfy the same purpose.   

8. It is not reasonable to assert a lack of or undisclosed legitimate forensic purpose, in order to avoid carrying out production just because the task is considered by the recipient to be onerous, or even oppressive.   

9. Whilst the ongoing production of some documents may appear as a “co-operative” approach, it cannot be characterised as such if that approach is employed in order to resist or avoid the production of other relevant documents.   

10. A failure by the recipient to have proceeded more expeditiously and in providing only partial production, does not of itself ground an order for indemnity costs: Bassal v Savills (NSW) Pty Ltd (No 3) [2017] NSWSC 911. Much will depend on the circumstances.

11. Whilst legal representatives are encouraged to engage in discussion as to how to resolve areas of disagreement and put forward various pragmatic solutions, once the parties have reached an impasse, it is appropriate for the recipient to either capitulate and comply with the order for production or move to set aside the subpoena.  Adopting a midway position, of providing further documents in an ad hoc way, consistent with accepting that the documents sought in the subpoena have a legitimate forensic purpose, whilst continuing to argue for the opposite view in order to limit production of otherwise relevant documents, is not reasonable.  

12. A proposal by the issuing party for more limited compliance is not a recognition that the subpoena as originally drafted was oppressive or without legitimate forensic purpose, but rather it arises by reason of an obligation to conduct litigation in a way that facilitates the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005 (NSW).

Findings of Facts  

13. On 18 and 26 or 27 March 2024, the Commissioner produced some documents in answer to the subpoena, fully complying with some classes of documents. The Commissioner informed the plaintiff on 26 March 2024 that the response was “limited to searches and information obtained from the NSWPF COPS system” and suggested that if the plaintiff required further “specific documents” that they say so, so that “additional work and commensurate conduct money can be agreed upon”.  It was contemplated at that time that “other Commands and / or Business Units within the NSWPF may have been asked to assist with responding to the subpoena”.  A list of 66 relevant “events” was supplied by the Commissioner.  

14. It follows that, likely by 18 March 2024, and certainly by 26 March 2024, the Commissioner had accepted that there was a legitimate forensic purpose in seeking production of the documents that were produced.  

15. On 30 April 2024, the Commissioner continued to act consistent with there being a legitimate forensic purpose for seeking the documents and sought a limitation of the documents sought so as to avoid it being “onerous” for the Commissioner to provide them.   

16. On about 14 May 2024, the plaintiff obliged, seeking documents relating to 28 events only.  

17. On 23 May 2024, the Commissioner continued to assert that that task remained “too onerous”.

18. After more than two months of negotiating a more narrowed claim, by reference not to the issues, but by reference to the document type, the Commissioner asserted for the first time that the legitimate forensic purpose was not apparent, including in respect of documents already produced. Notwithstanding, the Commissioner agreed to produce further documents, albeit of a limited kind.   

19. On 27 May 2024, the plaintiff agreed to consider the promised documents in an attempt to reduce further its claim by reference to particular events.   

20. The Commissioner produced additional documents on 29 May 2024, including “the facts sheets that have been located”.  

21. That being so, despite asserting that a legitimate forensic purpose was “not apparent”, the Commissioner continued to act as if she understood the legitimate forensic purpose that resided in the plaintiff seeking the documents.   

22. On 30 May 2024, more than two months after receiving the subpoena, the Commissioner stated that: 

1. Statements and transcripts may exist but may not be centrally stored and that each officer in charge would need to be contacted and instructed to undertake searches to confirm their existence.  Without knowing what was in them, the Commissioner, unreasonably in my view, sought information from the plaintiff to understand how this might assist the plaintiff’s case, beyond the legitimate forensic purpose that had already been identified and apparently accepted by the Commissioner. 

2. The Commissioner did not understand what paragraphs (i) and (j) of the subpoena referred to; that they were unspecific and unclear, making enquiries difficult. 

23. It is clear from the Commissioner’s 30 May 2024 letter that, to the extent that the Commission had made “archive searches”, a facts sheet had been located that had not earlier been produced, and that there had been no asserted difficulty in doing so. 

24. The Commissioner continued to require the plaintiff to identify further “specified material”.  It was said that the Commissioner would be “content to produce any further specific documents and provide [the plaintiff] with a further opportunity to review before confirming if anything further is pressed for”.  That statement makes clear that the Commissioner well understood the legitimate forensic purpose in asking for specific documents within the class of documents sought.     

25. On 12 June 2024, Ms Carmody then acting for the Commissioner, explained the Commissioner’s position “and the difficulties in producing all categories of documents” and again asked the plaintiff to identify further specified material.   

26. By 18 June 2024, the plaintiff gave what further explanation he could of the documents, and pressed only for production of the “complete file” relating to 19 identified events, likely to have the “greatest relevance to the proceedings”.  Consistent with the Commissioner understanding the legitimate forensic purpose in seeking the documents, no further information was sought or provided regarding the likely relevance of the documents to issues in the proceedings.  

27. Consistent with that state of mind: 

1. On 28 June March 2024, the Commissioner produced some further documents in answer to the subpoena.  

2. On 1 July 2024, the Commissioner indicated that she had no objection to producing “case file items” and offered to produce the “accessible case file items” for 5 of the 19 events.  Further documents were provided for the “2018 charge” event.     

28. On 2 July 2024, the plaintiff explained the categories that appeared to confuse the Commissioner and pressed for prompt production of all of the 19 files.   

29. Importantly on any question of indemnity costs, Ms Olsen, on behalf of the plaintiff, informed Ms Carmody that: 

“Your letter sets out your high-level observations from a review of the narratives for the 19 Events to determine whether the narratives provide an indication as to what material exists.  With respect, this is a flawed approach to the determination of whether documents exist that are captured by the subpoena.  The obligation is to take all reasonable steps to search for each and every document falling within the scope of the subpoena and within your client’s custody and control…  

It would appear, from the approach taken, that your client has failed to undertake all reasonable steps to determine whether documents captured by the subpoena are within your client’s possession, custody or control.  There has been no suggestion in your correspondence that enquiries have been made of the relevant officers or relevant stations where the relevant incidents were recorded to determine the existence of documents”.    

30. On 2 July 2024, according to the Commissioner, Ms Olsen “identified various documents which [she] believed ought to have been produced.”  The Commissioner was of the view at that time that the articulation of the further material had suggested that there had been a misunderstanding as to “what accessible material can be produced”.  Again, there was no suggestion that the Commissioner did not understand the legitimate forensic purpose in seeking the documents.      

31. In my view, the Commissioner was aware at all material times that, in order to comply with the subpoena, it was necessary to contact the relevant officers in charge of the matters, and to direct them to collate and produce the documents to the Court.  That was not done at any time prior to the hearing of the motion, other than perhaps in respect of one matter where a statement of facts was produced.  That stance was, in my view, unreasonable. 

32. On 10 July 2024, Ms Carmody prepared an affidavit in support of the Commissioner’s motion to set aside the subpoena.  

33. On 11 July 2024, the Commissioner filed a notice of motion seeking an order pursuant to R33.4 of the UCPR that the subpoena be set aside on two bases:

1. That the subpoena lacked legitimate forensic purpose; and 

2. That the call for documents was oppressive.   

34. Also on 11 July 2024, the Commissioner produced further documents in answer to the subpoena. 

35. On 12 July 2024, Ms Olsen filed an affidavit responding to the motion. 

36. On 18 July 2024, the Court made the following orders:  

1. By 23 July 2024, the Commissioner is to file any further evidence and submissions.  

2. By 25 July 2024, the plaintiff is to file any further evidence and submissions.    

37. On 24 July 2024, Ms Carmody wrote to Ms Olsen. By that time she had Ms Olsen’s affidavit dated 12 July 2024.  The Commissioner’s response to the subpoena was that: 

1. It was not apparent how the search warrants and related documents are “related to the identified facts in issue, namely family relations and patterns of aggression” and sought the plaintiff’s legitimate forensic purpose related to the search warrants. 

2. She had not produced some relevant documents, although she had offered to do so. 

3. As to Event E6169146, the “case file items would be produced”.  

4. CCTV footage related to E41257229 would be produced.  

5. Body worn video existed for E69730021 in respect of the 2018 charges, and enquiries were being made as to whether they could be produced.  

38. In short, the Commissioner sought an articulation of the legitimate forensic purpose only for the search warrant material, consistent with accepting the legitimate forensic purpose in seeking the remainder of the documents.  

39. However, the Commissioner represented that with respect to the balance of the subpoena given that “all investigations taken by police must be recorded on the COPS system” and where the Commissioner has attempted to “resolve the subpoena with the production of significant material” a legitimate forensic purpose was not clear on the balance of the subpoena.   

40. This revealed an unreasonable response by the Commissioner; that the provision of significant material should be sufficient for the plaintiff’s purposes, without knowing what was yet to be produced and without the plaintiff being able to make his own assessment of the significance of the material to his case.  It was also unreasonable to assert such a lack of understanding of the legitimate forensic purpose in order to resist full compliance.  This was done, disingenuously in my view, not because the Commissioner did not understand the legitimate forensic purpose, but rather in order to avoid searching beyond those documents identified by the COPS system and knowing that documents were potentially stored elsewhere.      

41. The Commissioner had always known that for “full compliance” with the subpoena, a search of physical and electronic files would need to be made to identify if further material existed, and that this involved retrieving and searching archived documents and making email requests.   

42. The Commissioner identified a “significant burden” on her to fully comply with the subpoena and sought to place the onus on the plaintiff to “further identify” a legitimate forensic purpose for documents going to the same issue that had already been identified, based not in a failure to understand the legitimate forensic purpose for the call but because those documents were more difficult for the Commissioner to seek out and identify, given the way the documents were stored.  That approach was in my view unreasonable. 

43. Also on 24 July 2024, the Commissioner withdrew her contention that the call for documents was oppressive, whilst at the same time arguing that the production of the “complete file” would present “excessive burden” and which burden the Commissioner clearly did not wish to carry.    

44. The Commissioner proposed a “further course of resolution” in answer to the subpoena, by further production, inconsistent with seeking to have it set aside. The Commissioner suggested that should the plaintiff be agreeable to the proposed resolution (that is by partial compliance but without any significant burden being placed to locate any relevant documents) the motion could be resolved. 

45. The Commissioner also proposed that if the plaintiff did not agree to such a limitation (based not on the nature of the document or its ability to inform as to issues in dispute but rather by reference to the difficulty with which the Commissioner could locate it) then she would press the contention that the balance of the material had no apparent legitimate forensic purpose.  To do so was in my view unreasonable.   

46. The plaintiff’s solicitor did not agree to the limitation suggested by the Commissioner. Ms Olsen stated: 

1. The plaintiff had already limited the documents to be produced by reference to event rather than document type.  

2. That the Commissioner should produce documents promptly. 

3. There are multiple documents that had not been produced. 

4. The Commissioner was still yet to make the necessary enquiries to search for captured documents.  

47. By way of the written submissions filed on behalf of the Commissioner on 24 July 2024, the Commissioner challenged the legitimate forensic purpose in seeking the documents that remained, stating that the breadth of the subpoena had cast doubt on the purported legitimate forensic purpose.  Given the history that I have recited, I find, contrary to that submission, that the Commissioner well knew the legitimate forensic purpose that attached to the documents.   

Matters Put at the Hearing of the Motion

48. On 26 July 2024, when the matter was heard, Ms Carmody appeared for the Commissioner. Mr Sibtain SC appeared for the plaintiff. Ms Carmody did not require Mr Sibtain SC to justify the legitimate forensic purpose in seeking the documents remaining to be produced, despite my invitation, a matter that of itself spoke against any lack of understanding on the Commissioner’s part.  

49. Rather, Ms Carmody’s first step in the hearing was to produce more documents.  The Commissioner’s position by that time was, contrary to her earlier position, that it was possible for the Commissioner to undertake all necessary inquiries to be sure that any and all documents responsive to the call, as pressed, can be produced without oppression.  In my view that was always the case.   

50. Ms Carmody submitted that the Commissioner had “a difficulty with agreeing to undertake those further excessive inquiries, in circumstances where the legitimate forensic purpose for the further material has not been made apparent.”  In my view the legitimate forensic purpose was always apparent to the Commissioner and her lawyers, hence the ongoing production.     

51. Indeed, Ms Carmody accepted as much in argument.  Following is the relevant exchange: 

CARMODY: … My client has a difficulty with agreeing to undertake those further excessive inquiries, in circumstances where the legitimate forensic purpose for the further material has not been made apparent.  I accept that.   

HER HONOUR:  It seemed to be apparent to the Commissioner, to a point. 

CARMODY:  Yes. 

HER HONOUR:  And, indeed, to a point, as at today, when documents attached to a COPS event which form part of case files, but perhaps are not all of them, the Commissioner seems to accept a . 

CARMODY:  Or doesn't challenge on that basis.  I do appreciate   

… 

HER HONOUR:  If those underlying documents might assist the plaintiff in cross examining parties to the litigation on credit,  …. [and which] involves a long running set of allegations and counter allegations about criminal conduct, or potentially criminal conduct, and the involvement of the police  I think I said to you, hopeful to resolve the issue, that I would take some convincing that there was none.  I'm still wondering, because the Commissioner now produces selective documents, but doesn't wish to produce them all that fit in the same category, that just strikes me as being interesting. 

CARMODY:  I certainly agree with your Honour's position, that if the underlying documents or the further material assisted in issues of cross examination or addresses issue of credit, but it's the Commissioner's position that the material that is outstanding  or is potentially outstanding does not appear to be a category of or documents of that nature that could exist   

HER HONOUR:  But the Commissioner doesn't know.  The Commissioner hasn't, as I understand it, had a look, and what the Commissioner does know, and what we all now know, is that there are things in the case files that have a legitimate forensic purpose.”  … 

CARMODY:  Yes. 

52. Ms Carmody later appeared to accept my characterisation that the legitimate forensic purpose for the items sought was relatively obvious. 

53. A further example of an acceptance by the Commissioner of legitimate forensic purpose was to produce documents on a particular issue, but to resist producing the underlying documents if there was a difficulty in locating them.  Underlying documents may be able to be deployed by the plaintiff in a way that the overarching hearsay document might not.  Whilst the type of document is different, the legitimate forensic purpose for seeking the document is the same.   

54. Indeed, the Commissioner continued at all times to act in a way that was consistent with her understanding that there was a legitimate forensic purpose in the documents sought. She undertook steps in compliance with the subpoena, such as reviewing the produced COPS events to determine if there were documents that may not have been electronically uploaded to the case file, and made inquiries with the relevant officer in charge, and produced accordingly in respect of some documents.

The Commissioner’s Submissions as to Costs  

55. The costs argument took place on 1 August 2024.  On that day Mr Pandaram appeared for the Commissioner. Mr Sibtain again appeared for the plaintiff.  

56. Mr Pandaram submitted that there should be no order as to costs, given the width of the call and the “overarching public interest the Commissioner has to raise objections” where the call is as wide as this one.   

57. Mr Pandaram submitted that there was such a public interest given that the Commissioner is a repository or the holder of very sensitive personal information and that it “almost is an obligation to challenge the scope”, when it is drafted so widely.  There is absolutely no suggestion in this case that there was any sensitive information that had not already been produced and over which a claim limiting access could be made by the Commissioner.  

58. Mr Pandaram accepted that ordinarily costs would follow the event, but submitted that they ought not be ordered in this case, given the width of the subpoena and the subsequent narrowing of the call, and the purported difficulty the Commissioner had in complying (a matter that I had already rejected).  

59. Mr Pandaram also submitted, contrary to my finding on the motion, that there was no legitimate forensic purpose and that this could be inferred by reason of the fact that “if there was legitimate forensic purpose for the scope, as originally drafted, then, surely it would have been pressed.”   

60. Mr Pandaram quite sensibly described that submission as a “controversial view”, in light of the orders made but also in light of the fact that a narrowing of the scope to the matters that remained would give rise to an inference that what remained was the more relevant material, something the parties had discussed in correspondence, and which appeared to have been accepted by the Commissioner.  Furthermore, the Commissioner did not change her stance even when the subpoena was narrowed by agreement.  In my view, the fact of the original subpoena being wider has little relevance.   

61. Mr Pandaram also argued that the plaintiff’s particulars of aggravated damages ought to have been provided earlier in support of the claim for legitimate forensic purpose, such that the parties did not need to argue the motion.  The difficulty with that submission is twofold:

1. The provision of the particulars did not lead to a change of position in the Commissioner, and did not appear to inform the Commissioner in any material way about legitimate forensic purpose; and 

2. It was clear from the earlier production and the submissions made by Ms Carmody, that the Commissioner did not wish to be put to the inconvenience of compliance, rather than genuinely not appreciating the legitimate forensic purpose in seeking the documents.

62. Mr Pandaram also submitted, that the provision of the particulars of aggravated damages had been given where Ms Carmody was “dealing with that material on the fly”, suggesting that she could have made the aforementioned submission in support of the motion.  I did not accept that submission.  Indeed, Ms Carmody was given whatever time she needed to respond to the document and could have made further submissions.  Ms Carmody did not wish to be heard further.  Ms Carmody had an opportunity to take instructions and she did not act “for the sake of expediency” (as was submitted). Rather, it was the case that the provision of the particulars of aggravated damage made no material difference.      

63. Mr Pandaram also made the bold submission “on every occasion where the width of the call is such as it is, that the subpoena would be challenged”.  That suggested that there would be occasions when the Commissioner would not take into account the legitimate forensic purpose of the material, but simply would challenge the subpoena as a matter of course.  That was a very concerning submission and informed the Court of the approach that had been taken in this matter, when the Commissioner arrived at the point where production was becoming more difficult.  

64. Otherwise, Mr Pandaram continued to assert that the legitimate forensic purpose “just simply wasn't apparent to us”, a matter that I do not accept for the reasons I have stated. 

65. As to the maintenance of the claim of oppression, Mr Pandaram submitted that the breadth of the subpoena warranted “at least a prima facie view that oppression might be a live issue” and asserted the need to convey that position to the plaintiff prior to “carefully tak[ing] instructions”.  That approach was fraught with difficulty as it caused the plaintiff to incur costs, on a basis which, on a careful consideration of his client’s position, was found to be unsustainable and was withdrawn.  That unsustainable and unreasonable position was maintained until the day before the motion.   

66. This asserted practice is inherently unfair. It favours the well-resourced, persistent litigant. It means that the impoverished litigant, or one represented by the Legal Aid Commission or the Aboriginal Legal Service on a limited budget, may never receive the relevant documents, limited by an ability to relentlessly pursue the issue. That has obvious implications in criminal matters, where the Commissioner is routinely subpoenaed.

67. Mr Pandaram argued that it was “open to the Commissioner to, certainly, make that suggestion, or at least put that issue before the Court, and plant that issue.”  As I mentioned to Mr Pandaram, I do not agree.  As Tobias JA made clear in Bailey v Director-General of Land and Water Conservation [2009] NSWCA 100; 74 NSWLR 333, in the context of claims for privilege, “it is necessary to sound a warning” such that failures are in no way encouraged, particularly where instrumentalities or agencies of the State are involved.

68. It is also a breach of r 21 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) to put a submission that Mr Pandaram knows cannot be maintained.

69. Finally, Mr Pandaram sought to defend the Commissioner’s position by reference to the fact that she is in receipt of thousands of subpoenas on a yearly basis, and that there is “enormous costs to the taxpayer”.  This is no reasonable basis to resist a subpoena and it was never put forward previously either in correspondence or in submissions.  I disregarded it as an ill thought out flourish in Mr Pandaram’s advocacy. The cost to the taxpayer arising from any unreasonable stance taken by the Commissioner is however a relevant consideration.

Resolution of the Costs Issue 

70. The plaintiff was wholly successful on the motion. 

71. In summary, the approach by the Commissioner at all times up to the point of the hearing of the motion showed clearly that she accepted the legitimate forensic purpose for seeking the documents that were less onerous to obtain.  I find that the Commissioner did appreciate the legitimate forensic purpose (and hence produced when it suited), and took a strategic approach to the production of documents, asserting unconvincingly a lack of legitimate forensic purpose in documents that might be more difficult to produce.  It became readily apparent when I took up the issue with Ms Carmody that the Commissioner was asserting simply that she faced a challenge in contacting each officer to confirm that any and all documents relating to a specific event had been located.  

72. A party will never know whether or not the documents sought, in respect of which there is a legitimate forensic purpose, have been produced, unless the Court can have confidence that the Commissioner has undertaken full and proper enquiries and satisfied herself that all documents meeting the call have been produced.  In this case the Commissioner did not do that.  She took a strategic view to search for documents that were obvious and looked no further.  It was not a proper or reasonable approach to the response to a subpoena that otherwise had a legitimate forensic purpose. 

73. The proper approach was pointed out to the Commissioner by the plaintiff in correspondence on 2 July 2024, well before the Motion was filed by the Commissioner.   

74. The Commissioner’s practice ought be eschewed.  It undermines the due administration of justice if any practice adopted by a recipient results in production of less relevant documents, but which are obvious or easy to obtain, and a failure to produce more relevant documents just because they are not, for example electronically stored, or are otherwise more difficult to find.   

75. Rather than there being no legitimate forensic purpose, the greatest concern of the Commissioner was that the subpoena required the relevant officers to be put to the trouble of retrieving archived paper documents where it might lead to nothing to produce.  As I informed Ms Carmody when the matter was first before me on 18 July 2024, the Commissioner's document retention program is a matter for the Commissioner.  If she wants to store documents in a way that make them difficult to find or examine, that is a matter for her.  It does not and cannot support a claim for lack of forensic purpose.  If it is relevant at all, it might be relevant to a claim of oppression in compliance, a matter that has in this case been disavowed and the Commissioner accepts that such documents can be found.  

76. Ms Carmody submitted at the hearing that the plaintiff had not demonstrated to her satisfaction a legitimate forensic purpose.  That submission was in my view disingenuous for the following reasons: 

1. The Commissioner’s response to the subpoena, in the ongoing production of documents, was inconsistent with that view.  

2. The documents related to police action taken against the defendant where credit issues would always likely be an issue. 

3. It took only a concession by Mr Smark SC who appeared on behalf of the defendant that there was such a purpose and the production of the particulars of aggravated damages (which had no relevant effect) for the Commissioner to accept that there was such a purpose. 

77. The legitimate forensic purpose was in my view apparent from the outset, as the documents related to “family relationship and patterns of aggression”.  That was well understood by the Commissioner prior to the filing of and hearing of the motion.    

78. The adoption of a method of production by the Commissioner regarded by her as “preferable”, that is to engage in the ad-hoc and ongoing production of documents across the categories of documents, all made plain that she did not need further information to assess legitimate forensic purpose.  She knew that the person in respect of whom the documents were sought was a party to the litigation and the reasons why the documents were sought. She did not challenge those reasons. There was no real uncertainty in the subpoena categories, and in my view, there was no undue burden on the Commissioner arising from the description of the categories, as either too broad or unspecific.   

79. The Commissioner knew at all relevant times that to answer the subpoena she would need to: 

1. Contact the relevant officers in charge for 19 events and ask them to search their physical files and electronic files for material relating to a specific event.   

2. Have the relevant officers in charge retrieve and interrogate archived paper records for particular dates as particularised by the event numbers; and

3. Search email correspondence by word or event number searches.   

80. That was not done because it was deemed to be “too onerous”. 

81. It is no answer to assert, as the Commissioner did in correspondence, that such searches would produce only “limited material”.  That says nothing of the likely benefit to the plaintiff.  One significant document might be more powerful than 100 less relevant documents.  

82. The Commissioner asserted as late as 24 July 2024, that there was a “significant burden” in the Commissioner retrieving the outstanding documents. I do not accept that, and I have taken into account that the Commissioner disavowed any claim for oppression despite that claim having been set out in the motion.   

83. In my view, compliance could have been achieved well prior to the motion being filed.   

84. Finally, it is relevant that Ms Carmody submitted that the Commissioner would be content to produce case file items, and referred to correspondence sent by her firm to the plaintiff on 24 July 2024.  The Commissioner conceded in that letter, only two days prior to the hearing, that “the articulation of further material” by the plaintiff had “been very helpful to review”.  The Commissioner appreciated at that time that “production of the case file items would likely remedy most of the concerns” that the plaintiff had.  Relevantly it was abundantly clear from that letter that the Commissioner understood the relevance of the documents sought to the pleaded case.  She understood it to relate to the defendant and broadly to a “family relationship and patterns of aggression”.  In my view, she always understood the legitimate forensic purpose for the items sought.  The position that the Commissioner took, asserting a lack of legitimate forensic purpose for the subpoena, where she was at the same time producing documents in answer to it, appeared disingenuous and I find that it was an attempt to not over burden herself, whilst at the same time, not being able to establish that the subpoena was oppressive.  That overall position in my view was unreasonable.  

85. As articulated on 26 July 2024, when the motion was argued, the crux of Commissioner’s position was compliance involved an “onerous task”, although not oppressive and something she ought not undertake without further particulars, despite understanding the legitimate forensic purpose for the documents sought.  It was accepted at that time, that the Commissioner could undertake all necessary enquiries, responsive to the call.  That was always the case.  

86. It is also relevant that any claim of oppression by the Commissioner was not genuinely held, had no substantive basis and was ultimately abandoned.  

Order and Reasons  

87. In summary, I make the following findings on the application for costs: 

1. The plaintiff was wholly successful on the motion 

2. The Commissioner took, in my view an unreasonable approach in defending the motion, including in respect of the following five matters:

1. The Commissioner raised objections to the narrowed subpoena for the first time on 23 May 2024, more than two months after it was served and by which time she had produced a number of documents in response to it.  There was no real challenge or complaint as to the subpoena for many weeks, and not until compliance became “burdensome” to the Commissioner.  Ultimately the Commissioner offered little resistance to the motion: Franks v Warringah Council [2010] NSWSC 1318

2. The Commissioner continued to produce in response to the subpoena, in an ad-hoc way, to suit herself, including “case file items” during the course of the hearing of the motion to set the subpoena aside, whilst at the same time asserting a lack of legitimate forensic purpose for those things that were more difficult to ascertain, rather than them having a lack of legitimate forensic purpose. 

3. The assertion as to a lack of legitimate forensic purpose overall lacked substance. 

4. The Commissioner contended that the subpoena was oppressive.  That matter was raised without evidence in support of it, and was ultimately abandoned on 24 July 2024, only two days prior to the hearing.   

5. The approach taken by the Commissioner unnecessarily prolonged the hearing and unreasonably increased the legal costs incurred by the plaintiff.  

ORDER  

88. The Commissioner is to pay the plaintiff’s costs of the motion filed on 11 July 2024 on an indemnity basis. 

NOTE  

89. Although it is not necessary to do so, as this will be a matter for the costs assessor, it is notable that some costs of the motion may have been incurred prior to the filing of the motion.  For example, the Commissioner first raised the issue of oppression as early 23 May 2024. The plaintiff has incurred costs preparing for an oppression argument that didn't take place, where no evidence was brought forward to support it and where it was withdrawn before the application was heard. 

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Amendments

06 September 2024 - Party names amended.

17 October 2024 - Prefix title amended.

Decision last updated: 17 October 2024