Jeffery v Roberts (No. 2)

[2001] NSWADT 115

CITATION:	Jeffery & ors -v- Roberts (No. 2) [2001] NSWADT 115
DIVISION:	General Division
PARTIES:	APPLICANTS Victor Robert Jeffery Jack Ireland Barry Clendinning William Coombe RESPONDENT Lennard Bruce Roberts
FILE NUMBER:	003306
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	05/31/2001
DATE OF DECISION:	06/04/2001
BEFORE:	Britton A - Judicial Member
APPLICATION:	Summons - application to set aside - Summons - general principles
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Local Government Act 1993
CASES CITED:	Victor Jeffery & Ors -v- Lennard Roberts [2001] NSWADT 66 Hunt -v- Wark (1986) 40 SASR 489 Maddison -v- Goldrick [1976] 1 NSWLR 651 The Queen -v- White (1976) 13 SASR 276 R -v- Saleam (1989) 16 NSWLR 14 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd.[1984] 1 NSWLR 710 Small v Commissioner of Railways (1938) 38 SR(NSW) 564 Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 102.)
REPRESENTATION:	APPLICANTS In person RESPONDENT In person
ORDERS:	1. The application to set the summons aside is dismissed.; 2. Access to the documents provided under the amended summons is granted to both parties.

1 This decision concerns an application by Mr Lennard Roberts, to have a summons to produce documents set aside. Mr Roberts is the respondent in the principal proceedings, which gave rise to this application: Victor Jeffery & ors -v- Lennard Roberts ( File number 003306). These proceedings are part-heard and concern an application under s.329 of the Local Government Act1993 seeking an order that Mr Roberts be dismissed as councillor of the Great Lakes Local Council (the original application).

Background

2 On 17 October 2000, at the request of Mr Victor Jeffery, an applicant in the principal proceedings, a summons to produce documents was issued by the Registrar of the Administrative Decisions Tribunal (the Tribunal), pursuant to s 84(1) of the Administrative Decisions Tribunal Act1997 (the Tribunal Act). The summons was issued to the Deputy Director-General (Corporate Services) NSW Department of Education and Training (the Deputy Director-General).

3 The documents sought to be obtained under summons were set out in the Schedule to the summons and were described as follows:
“The leave applications, records and approvals by the Department of Education and training relating to Lennard Bruce Roberts directly in relation to his statement in his Candidate Information Sheet (already provided to the Department of Education as part of a recent Freedom of Information Application), that he was on long service leave on 24 May 2000, including any documents which verify or refute his statement in that Candidate information Sheet.
In addition the same type of documents which show the type of leave taken by Mr Roberts from 24 May 2000 to 1 July 2000 (the date of the Council Election).”


4 The summons was returnable on 13 November 2000. At a directions hearing on 21 November 2000 it was submitted on behalf of the Deputy Director-General that the summons should be set aside on the grounds that it was too wide and therefore oppressive. However on that day, the call on the summons was stood over until the Tribunal determined a preliminary issue concerning jurisdiction.

5 On 27 April 2001 the Tribunal handed down an interlocutory decision, determining that it did have jurisdiction to entertain the original application: Victor Jeffery & Ors -v- Lennard Roberts [2001] NSWADT 66.

6 Subsequent to that decision the return of summons was re-listed. At a directions hearing before me on 30 May 2001 it was again submitted on behalf of the Deputy Director-General that the summons be set aside on the grounds that it was too wide. At that hearing, Mr Roberts was granted leave to amend the schedule of documents sought. This amended summons described the documents requested as “documents relevant to the leave status of Mr Jeffery with the NSW Department of Education and Training as at 24 May 2000.” These documents were returnable on 4 June 2001. In the light of these amendments the Deputy- Director General withdrew her objection.

7 At the directions hearing on 30 May 2001 Mr Roberts, made application to have the summons set aside and the parties were given the opportunity to make written submissions in relation to this set aside application. Written submissions were provided by Mr Roberts and with the consent of the parties, this application was determined “on the papers” pursuant to s 76 of the Tribunal Act.

8 The Deputy-Director General subsequently produced the documents to the Tribunal. On 4 June 2001 I made an order granting both parties access to these documents. On 6 June 2001 Mr Roberts pursuant to s 89(3) (a) of the Tribunal Act requested written reasons for that decision. These are the reasons in answer to that request.

Mr Roberts' Submissions

9 Mr Roberts relied on a number of grounds to support his application that the amended summons be set aside. First, he contends that the documents sought are irrelevant to the substantive application before the Tribunal. He argues that the information requested, namely his leave records with the Department, (his employer throughout the relevant period) do not relate to the matter before the Tribunal, namely an alleged irregularity in the manner of his election as a councillor. In summary he claims that the amended summons represents an abuse of process, as the documents requested are irrelevant to the substantive application before the Tribunal, containing instead irrelevant material of a private nature.

10 Second, he submits that the scope of documents sought in the amended summons is too wide.

11 Third, he claims that the Tribunal erred in law in allowing the summons to be amended rather than insisting that a fresh summons be issued.

12 Fourth, he contends that the summons is being used to conduct a vexatious “fishing expedition”, to discover material at large. The Tribunal cannot be assured that the documents requested will be used in the case before it and will not be used for some other purpose and on that basis argues Mr Roberts the summons should be set aside.

13 Mr Roberts in his written submissions referred me to a number of authorities relevant to the legal principles that should guide the Tribunal in a decision to grant access to documents requested under summons. While in this decision I have not referred to all these authorities I have read and considered all the authorities to which I have been taken. I will only refer to those authorities and legislative provisions here which I consider to be of particular significance in arriving at my conclusions.

Summary of General Principles

14 The principles relating to summons to produce documents are well-established. “Fishing expeditions” are not permitted. In Hunt -v- Wark (1986) 40 SASR 489 King CJ at p. 493 said:
“A summons to witness to produce documents cannot be used for the purpose of mere “fishing”. There must be some reason to suppose that the documents sought will be capable of being used as evidence. On the material before the Judge there was no reason to suppose that the documents sought, even if they exist, would have any bearing on any issue capable of being raised by the evidence. To be the subject of a summons to witness… the documents must be ‘required for the purposes of evidence upon behalf of either party’. It is not necessary to construe those words with undue strictness so as to refer to only documents which are admissible evidence. The words are wide enough to include documents reasonably needed for the cross-examination of a witness, such as statements by the witness with respect to matters at issue in the case Maddison v Goldrick [1976] 1 NSWLR 651 whether or not they would ultimately be used in evidence to contradict the witness. I should think that they are also wide enough to include documents which may be used to refresh the memory of an intended witness and perhaps in other ways directly related to the presentation of the evidence in the case. The documents must be required, however, in some sense ‘for the purposes of evidence’. The subpoena process may not be used as a means of obtaining discovery of documents from the Commissioner of Police or as a means of obtaining information in the hope that it may lead to the ascertainment of witnesses or evidentiary documents: The Queen v White (1976) 13 SASR 276 especially at pp 281-282.”
15 In R v Saleam (1989) 16 NSWLR 14 Hunt J said at p. 18:
“ Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case”.

16 Second, even if there is some legitimate forensic purpose behind it, a subpoena drawn so widely that it would be oppressive to enforce it will be set aside. When is a subpoena oppressive? In Southern Pacific Hotel Services Inc -v- Southern Pacific Hotel Corp Ltd .[1984] 1 NSWLR 710 at p.720 Clarke J discussed the meaning of “oppression”: “The Court, in determining whether a subpoena is oppressive, is concerned whether in all the circumstances, the demand is, for relevant purposes, too wide or uncertain.”

17 The classic formulation of the test of oppression is to be found in Jordan CJ’s judgement in Small -v- Commissioner of Railways (1938) 38 SR(NSW) 564 at p.573:
“ A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not be required to go to the trouble and perhaps to expense in ransacking his records and endeavouring to form a judgement as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant… And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the court to have it set aside.”


Conclusions

18 The first issue for me to address is whether Mr Roberts, who is a stranger to the summons, but a party to the principal proceedings can bring an application to set aside the amended summons. It is well-established that an application to set aside a summons which is alleged to be an abuse of process may be made not only by the person to whom the summons is directed but also by a party to the principal proceedings. (See Powell J in Botany Bay Instrumentation & Control Pty Ltd -v- Stewart [1984] 3 NSWLR 98 at 102.) A court or tribunal has an inherent power to control its own process. If a court or tribunal is satisfied that its process is being abused, it may, of its own motion, or on the application of a party to the proceedings, take the necessary steps to prevent such an abuse. I will return to discus whether Mr Roberts has standing in relation to all the grounds relied on in his set aside application.

19 Mr Robert contends that the documents concerning his leave status with the NSW Department of Education and Training (the Department) are irrelevant to the substantive application before the Tribunal.

20 In the original application the applicants allege that some of the information provided by Mr Roberts in the Candidate Information Sheet, was misleading and incorrect, including information relevant to his leave status with his then employer, the Department. Section 308(1) of the Act requires a nomination of a candidate to a civic office to be accompanied by a candidate information sheet in the form of a statutory declaration made by the candidate. The returning officer is to make each candidate information sheet available for public inspection: s308(3).

21 If the evidence sought in the Department’s documents concerning Mr Roberts’ leave records goes to a question, which is substantially in issue in these proceedings, it is relevant evidence and the Tribunal will give it what weight it deserves, should it be tendered. I am satisfied that there the records are likely to contain evidence which goes directly to the question of whether or not Mr Roberts issued or caused to be issued a candidate information sheet which was misleading. The leave records are therefore relevant, and it is no abuse of process on the part of the applicant to seek access to them and to tender them in the proceedings at the appropriate stage.

22 The second ground on which Mr Roberts relies is that the summons is drawn so widely that it would be oppressive to enforce. I do not think that this is a ground open to Mr Roberts to argue. This is a summons to a stranger to the proceedings, not to him. If the stranger does not take the point, then it seems to the Tribunal that Mr Roberts has no standing to argue that the summons is oppressive of a third party. The party whose interests are directly affected in the sense that it is required to undertake the task of identifying and producing the evidence sought is presumed to be capable of protecting its own interests.

23 It was argued on behalf of the Deputy-Director General in the November Directions hearing that the original summons as drawn was too wide and therefore oppressive. However it was not necessary for me to determine this issue as at the 30 May 2001 hearing the scope of documents requested was narrowed and the Deputy- Director General’s objection withdrawn.

24 Accordingly I am not persuaded that the amended document should be set aside on this ground.

25 I turn now to the third ground raised by Mr Roberts namely that the Tribunal erred in law in allowing the original summons to be amended rather than requiring a fresh summons to be issued.

26 The first thing to be said in relation to this ground is that I doubt whether Mr Roberts has standing to raise this ground either. It is not a summons addressed to him, and, absent any evidence of abuse of process, I do not see that it is open to him to intervene and seek to interfere in an issue which arises between the applicant, the third party and the Tribunal. In case, however, I am wrong in viewing the matter this way, I will, for argument’s sake, deal with the substance of the submission.

27 Section 84 of the Tribunal Act and rules 20 and 46 of the Administrative Decisions Tribunal (Interim) Rules 1998 which are set out in Schedule 1 to the Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 set out the relevant provisions in relation to a summons to produce documents. The ADT’s Practice Note 7, Summons to Attend and Give Evidence; Summons to Attend and to Produce Documents or other things: Tribunal Practice provides information to the parties in matters before the Tribunal about Tribunal practice in relation to issuing summonses.

28 The Tribunal Act does not grant the Tribunal a specific power to amend a summons but it does give the Tribunal the power to govern its own procedure: s 73(1). The Tribunal has broad powers to conduct matters in whatever manner it thinks fit: s 73(2); it has a duty to act with as little formality as the circumstances permit and according to equity, good conscience and the substantial merits of the case without regard to the technicalities or legal form: s 73(3).

29 In my view it is within the Tribunal’s power in certain circumstances to allow a summons to be amended without requiring that a fresh document be issued. It is to be noted that no objection was raised by the Department to this proposed course of action. Importantly Mr Roberts has suffered no prejudice as he was given the opportunity to make submissions in relation to the amended summons. I therefore reject the submission on this basis, as well as on the ground that he lacks standing to argue the issue.

30 The final ground raised by Mr Roberts is, as I understand it, that the documents requested in the amended summons contain information of a private nature. He argues that access should not be granted, as the Tribunal cannot be guaranteed that this material will be used exclusively for the Tribunal proceedings.

31 This is, in substance, an “abuse of process” argument reiterated. In my opinion, any possible prejudice can be dealt with by making appropriate directions as to the access and use to which the documents may be put. The documents remain under the control of the Tribunal until they are returned to the owner of the records, the Department of Education. It would almost certainly constitute a contempt pursuant to s131(1)(j) of the Tribunal Act for the applicants to use any material to which they were granted access for any purpose other than adducing evidence in these proceedings and, if it were suspected on reasonable grounds that the applicants had committed a contempt, appropriate action could be taken.

Orders

(1) The application to set the summons aside is dismissed.
(2) Access to the documents provided under the amended summons is granted to both parties.