Harvey v State of New South Wales

[2005] NSWSC 1389

CITATION:	Harvey and Anor v State of New South Wales [2005] NSWSC 1389
HEARING DATE(S):	15 June 2005
JUDGMENT DATE :	15 June 2005
JURISDICTION:	Equity Division
JUDGMENT OF:	Johnson J at 1
DECISION:	Application to set aside subpoena on the basis that it constitutes an abuse of process of the Court is declined.

CATCHWORDS:	PRACTICE AND PROCEDURE - subpoena - application to set aside - whether abuse of process - legitimate forensic purpose
LEGISLATION CITED:	Fair Trading Act 1987
CASES CITED:	National Employers’ Mutual General Association Limited v Waind & Hill (1978) 1 NSWLR 372 Principal Registrar of the Supreme Court v Tastan (1994) 75 A Crim R 498 Commissioner of Police v Tuxford (2002) NSWCA 139 Attorney General for NSW v Stuart (1994) 34 NSWLR 667 Carroll v Attorney General for NSW (1993) 70 A Crim R 162
PARTIES:	Bruce Harvey (First Plaintiff) Bruce Harvey Enterprises Limited (Second Plaintiff) State of New South Wales (Defendant)
FILE NUMBER(S):	SC 5051/01
COUNSEL:	Mr F Donohoe (Plaintiffs) Mr P Menzies QC; Mr D Mallon (Defendant) Mr P Singleton (Board of Studies of NSW)
SOLICITORS:	Carneys Lawyers (Plaintiffs) Crown Solicitor's Office (Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

Johnson J

15 June 2005

5051/01 Harvey and Anor v State ot New South Wales

JUDGMENT (On application to set aside subpoena addressed to the Board of Studies; see p 220 of transcript for 15/06/05)

1 JOHNSON J: The Plaintiffs have caused to be issued a subpoena directed to the Office of the Board of Studies NSW, seeking the production of documents, being “the personnel file of Adrian Tucker from 1 January 1993 to date, who was employed by the Board of Studies and who may [have] left or been terminated in or about 1994/1995”.

2 The Board of Studies, by Notice of Motion, seeks to set aside the subpoena or, alternatively, seeks an order that there be no inspection allowed with respect to the documents subpoenaed.

3 Although the Board of Studies is, in a sense, an agency of the State of New South Wales, it is to be treated as a third party for the purpose of this application. It is not a party to the proceedings and has been separately represented on this application by Mr Singleton of counsel.

4 In this judgment, I will deal only with the first application of the Board of Studies, namely that the subpoena be set aside.

5 It is the case that certain documents have been informally and voluntarily produced, but not produced as a result of an order of the Court. Accordingly, the first issue remains a live one on the application.

6 In substance, the Board of Studies submits that the subpoena constitutes an abuse of process. It is not submitted that it is oppressive.

7 The three steps with respect to subpoenas are well known and have been identified in National Employers’ Mutual General Association Limited v Waind & Hill (1978) 1 NSWLR 372 at 381 and following; the first step being production to the Court; the second step being inspection; the third step being the tender in evidence of material. Again, I stress that the present judgment deals with the first step only.

8 I accept that the relevant principles are as stated in the written outline and the oral submissions of Mr Singleton of counsel.

9 Since Waind & Hill, a body of law has developed which has utilised the term "legitimate forensic purpose". A subpoena must have a legitimate forensic purpose or it will be an abuse of process and should be set aside: Principal Registrar of the Supreme Court v Tastan (1994) 75 A Crim R 498 at 508. Where a third party objects to production and seeks to set aside the subpoena, as is the case here, it is for the subpoenaing party to identify the legitimate forensic purpose which is relied upon in support of the use of the Court's process and which it is said renders that process proper and not an abuse of process.

10 The statement of Brownie AJA (Spigelman CJ and Ipp AJA agreeing) in Commissioner of Police v Tuxford (2002) NSWCA 139 at paragraph 27 is applicable to this application:

"In the language of Jordan CJ in Small at 575, the opponents were not entitled to procure the issue of the subpoena for the purpose of fishing, that is, endeavouring not to obtain evidence to support their case, but to discover whether they had a case at all, or to discover the nature of the case of the defendant. In the language of Lord Wilberforce in Air Canada at 439, there must be something beyond speculation, some [concrete] ground for belief that takes the case beyond a mere fishing expedition."

11 A bare and unsupported assertion that something may be found which is helpful to the party seeking access to the documents will not be sufficient to establish the existence of a legitimate forensic purpose: Attorney General for NSW v Stuart (1994) 34 NSWLR 667 at 676. The subpoenaing party must be able to indicate that the document is relevant in the sense that it may assist his case: Carroll v Attorney General for NSW (1993) 70 A Crim R 162 at 182.

12 In the present case, the Plaintiffs assert the existence of a legitimate forensic purpose and concrete grounds for the belief that the subpoenaed material would support their case in the following way. The Plaintiffs, by their Further Amended Statement of Claim, allege at paragraph 55A and following, and in particular at paragraphs 55E-F, that the State of New South Wales was negligent in the appointment of Mr Tucker to the position he held within the Department of Aboriginal Affairs and that there was not supervision or adequate supervision by the State of New South Wales with respect to the conduct of Mr Tucker in his dealings with the Plaintiffs.

13 Those dealings occurred in 1999 and 2000 and involved a course of conduct on the part of Mr Tucker with Mr Harvey, one of the Plaintiffs, which it is not necessary to recite in any detail in this judgment. Put shortly, it is alleged by the Plaintiffs that Mr Tucker, as an officer of the Department of Aboriginal Affairs, made representations to Mr Harvey over a period of time which it is alleged have given rise to loss and damage and entitle him and the Second Plaintiff to damages for negligence and for misleading and deceptive conduct under the Fair Trading Act 1987.

14 Mr Tucker was an officer of the Department of Aboriginal Affairs in 1999 and 2000. There is evidence before me on the present application that Ms Burney was the Deputy Director General, then the Director General of the Department of Aboriginal Affairs at relevant times in 1999 and 2000. Ms Burney was a member of the Board of Studies between 1992 and 1998. There is further material which is not in evidence in this proceeding, but upon which the Plaintiffs rely in the present application. In a note of a conversation which is said to have taken place on 2 August 2000 between Ms Burney and Mr Terry Griffin, a solicitor retained by the Crown Solicitor's Office and the Department of Aboriginal Affairs, to investigate the matters arising from Mr Tucker's involvement with Mr Harvey, Ms Burney is alleged to have said words to the effect (MFI1, page 327B):

"… that Mr Tucker's departure from the Board of Studies was unhappy. She said as far as she knew there was some problem with the purchase of videos by Mr Tucker from a third party who was known to him. She said she thought that in the end the Board of Studies had to apologise to Mr Tucker and he was paid out but she did not know the details."

15 The Plaintiffs assert that there is a legitimate forensic purpose in their obtaining access to the documents which have been subpoenaed from the Board of Studies concerning Mr Tucker's employment. Firstly, it is submitted that it goes to the claim for negligence against the State of New South Wales with respect to the employment and supervision of Mr Tucker working within the Department of Aboriginal Affairs, given Ms Burney's prior knowledge of Mr Tucker whilst he worked at the Board of Studies, and Ms Burney's later role, being a senior officer to Mr Tucker in the Department of Aboriginal Affairs in 1999 and 2000.

16 Secondly, the Plaintiffs submit that a legitimate forensic purpose is demonstrated in that this material may assist in the cross examination of Ms Burney if she is called. It is said that it goes to the decision to employ and continue the employment of Mr Tucker in the late 1990s and in 2000, and the supervision of him and the extent to which Ms Burney may have had knowledge of his prior employment history which may bear upon, firstly, his employment and, secondly, the degree of supervision which may be required of him.

17 I am satisfied that the legitimate forensic purpose advanced by the Plaintiffs satisfies the legal test in the authorities to which I have referred.

18 I am satisfied that there is some concrete ground for the belief that the documents could support the case of the subpoenaing parties. Accordingly, having been satisfied of those matters, I am not of the view that the subpoena constitutes an abuse of process of the court and I decline to set it aside.

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