Keown v State of New South Wales

[2023] NSWSC 1588

Supreme Court

New South Wales

Medium Neutral Citation:

Keown v State of New South Wales [2023] NSWSC 1588

Hearing dates:

8 December 2023

Date of orders:

18 December 2023

Decision date:

18 December 2023

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1)   The State’s motion is dismissed.

(2)   Paragraphs 2(f), (g) and (h) of the State’s subpoena is set aside.

(3)   The State is to bear Mr Keown’s costs of the motions, as agreed or assessed.

(4)   The matter is adjourned for the hearing of Mr Keown’s November motion on 5 March 2024.

Catchwords:

PROCEDURE — notice of motion — orders seeking to set aside plaintiff’s subpoena — where documents sought are relevant to issues raised by the pleadings — where there is a legitimate forensic purpose — motion dismissed

PROCEDURE — notice of motion — orders seeking to set aside parts of defendant’s subpoena — where the documents have no apparent relevance to issues raised by the pleadings — where no legitimate forensic purpose is established — orders made

Legislation Cited:

Children (Criminal Proceedings) Act1987 (NSW), s 14

Civil Liability Act2002 (NSW), s 3B

Civil Procedure Act 2005 (NSW), s 56

Limitation Act1969 (NSW), s 6A(1)

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:

R v Saleam [1999] NSWCCA 86

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Category:

Principal judgment

Parties:

David Keown (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
J C Lee (Plaintiff)
T Buterin (Defendant)

Solicitors:
New Path Legal (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

2023/45790

Publication restriction:

Nil

JUDGMENT

1. In February 2023 Mr Keown brought an action for damages for child abuse which he claims he suffered in June 2009, while he was detained at Cobham Juvenile Justice Centre, a government institution. His claims are not subject to any limitation period: s 6A(1) Limitation Act1969 (NSW). He claims this abuse was committed with the intention of causing him injury, involving as it did sexual assault and other sexual misconduct within the meaning of the Civil Liability Act2002 (NSW): s 3B.

2. Mr Keown’s statement of claim names the alleged perpetrator, but as the result of events which unfolded after he commenced the proceedings, it has become common ground that the named person was not working at the Centre at the relevant time. The result was that he has sought to amend his pleading.

3. The State has not yet filed a defence. Nor has it consented to Mr Keown filing his proposed amended statement of claim, which describes the alleged perpetrator without naming him. In November Mr Keown thus filed a motion seeking leave to file that pleading. That motion is listed for hearing in March 2024.

4. This judgment thus deals with two earlier motions.

5. The first, the State’s September 2023 motion which seeks orders setting aside an August 2023 subpoena issued to the Department of Communities & Justice. The second, Mr Keown’s October 2023 motion seeking to set aside certain paragraphs of a September 2023 subpoena the State had issued to his solicitors, New Path Legal.

6. It emerged at the hearing of these motions that there is no issue between the parties that Mr Keown’s claims do not depend on him identifying or naming the alleged perpetrator. It was only then, however, that the State indicated that it had objections to the form of the amended statement of claim, even though the only change proposed is to the description of the alleged perpetrator. But it has not yet communicated what those objections are.

7. As I said at the hearing, the State needs to do so promptly, consistently with the obligations imposed on the parties by s 56 of the Civil Procedure Act2005 (NSW), assisting the Court to further the overriding purpose there specified, the just, quick and cheap resolution of the real issues in the proceedings.

8. Prompt disclosure of its objections will plainly help advance this purpose.

Mr Keown’s claims

9. Mr Keown claims that certain duties were imposed on those who operated and managed the Centre, to support him in his detention. They included maintaining his well-being, promoting his education, maintaining discipline amongst detainees and facilitating the proper control and management of the Centre: s 14 Children (Detention Centres) Act1987 (NSW). Further, that the State owed him a duty of care to ensure that he was not sexually assaulted whilst in detention, given the high degree of control that was exercised over him while he was detained at the Centre.

10. Mr Keown advances claims in negligence, having been exposed to the risk of significant harm at a time when the vulnerability of children to sexual abuse by an adult in employment at the Centre was known or ought to have been known to the State. That risk of harm was foreseeable, given the control and authority which it exercised over detained children such as he. He also claims that at all material times the State also assumed and stood in a parens patriae position to him and should have informed itself of this risk of harm.

11. Mr Keown has given extensive particulars of matters which he contends should have led the State to implement precautions at the Centre, to protect him from harm. He claims that it failed to take available measures to mitigate and/or reduce the risks to which he was there exposed, extensive particulars of which are also given. He also claims that given the probability that harm would occur to him if reasonable care was not exercised and precautions were not taken, a reasonable person in the State’s position would have taken such precautions.

12. Mr Keown also pleads that he was sexually assaulted while in detention by a person working there in circumstances of which particulars are also given, as well as particulars of the harm which he suffered as a result. Particulars are also given of the alleged breaches of the duty of care that he was owed.

13. Mr Keown also pursues intentional torts, particulars of which are also given, as well as of the harm which he claims resulted. The State’s liability for battery is also pursued, for which aggravated and exemplary damages are sought.

14. Vicarious liability is also pursued, it being alleged that the State is liable for the negligence of Ministers, their delegates and its employees, which resulted in the harm which he suffered, given how reliant he was on the State for his care, welfare, protection and health and how, as a juvenile detainee, he was required to obey the orders and directions of the perpetrator. That flowed from the authority the perpetrator had over him, in the role he performed at the Centre and the assaults taking place during the course of his employment and being closely connected or incidental to it.

15. Mr Keown also claims that the perpetrator targeted and groomed him; controlled him by threat and by granting and withdrawing privileges, based on his compliance with his directions and also threatened him against disclosure and non-compliance with those directions; and that the State and its employees failed to investigate his assault and battery; provide him with support; monitor the perpetrator’s ongoing actions, revoke his authority or curtail his ability to assault him.

16. The results are claimed to be a Wilkinson v Downton tort, committed in the course or scope of the perpetrator’s employment, for which the State is vicariously liable. A claim of false imprisonment is also pursued, for which Mr Keown also claims the State is vicariously liable.

The issues and applicable principles

17. There was no objection to the evidence, apart from one privileged communication, the tender of which was withdrawn. In evidence is:

1. Mr Keown’s June 2023 evidentiary statement and a supplementary July statement, where he explained how the alleged perpetrator came to be named in his statement of claim.

2. A supporting July 2023 affidavit sworn by his solicitor, Mr McKay, which sheds further light on how that came about and corroborates aspects of Mr Keown’s evidence.

3. The affidavit of Ms Phiri, a solicitor in the employ of the State’s solicitors, Hicksons Lawyers.

18. There was no issue about the applicable principles. They are as explained in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 and include:

1. on an application to set aside a subpoena, the issuing party must identify some legitimate forensic purpose, the existence of which can fairly be regarded as justifying the call which the challenged subpoena makes: at [34];

2. such a purpose includes the pursuit of “a proper and fruitful course in cross-examination”, including as to credit: at [38] and [61]-[62];

3. It may be enough that it appears to be ‘on the cards’ that the documents will materially assist the subpoenaing party, for example, to test the evidence of a witness by comparing it with the witnesses’ earlier report, even if even if that party does not know whether those documents will assist or advance its case: at [39]-[40];

4. evidence that is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court may be subpoenaed, including documents of a third party: at [42];

5. apparent relevance is sufficient if it can be seen that the documents will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documents will so assist: at [43]-[44], [46], [55], [65];

6. there will be no legitimate forensic purpose in the circumstances identified at [45]-[46]:

1.   unless the subpoena was not issued for the purpose of a pending trial, hearing or application;

2.   where to require the attendance of a witness would be oppressive;

3.   where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence;

4.   where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party;

5.   where the subpoena has been used for the purpose of obtaining discovery against a third party;

6.   where to require a party to comply with a subpoena to produce documents would be oppressive;

7.   where the subpoena has been issued for a purpose which is impermissible, as, for example, ‘fishing’...

7. documents sought which could reasonably be expected to throw light on some of the issues in the proceedings may be subpoenaed: at [48]-[50].

8. but discovery cannot be required: at [53];

9. documents which establish the facts in issue in the litigation and thereby enable justice to be done and so plausibly relate to an issue in the proceedings or “cast light” on such an issue, so long as the subpoena is not in other respects either too vague or oppressive: at [56];

10. an appropriately targeted subpoena which advances the overriding purpose specified in s 56 of the Civil Procedure Act, even though it may not be able to be shown that the documents either will or will be likely to assist the case of the issuing party: at [58];

11. if it can be demonstrated that the subpoena has been issued for some improper, illegitimate or ulterior purpose foreign to the litigation, the subpoena may be set aside as an abuse of process, in spite of the apparent relevance of the documents: at [70];

12. if the documents subpoenaed do not meet the relatively low threshold of apparent relevance, it may readily be inferred that the documents are being sought for some purpose foreign to the litigation: at [71]; and

13. the issues in civil proceedings are initially identified and defined by the pleadings and particulars; then further refined by amendments to the pleadings and upon the service of witness statements and affidavits.

19. Accordingly, as the Chief Justice concluded at [80], a party will generally be able to demonstrate that it has a legitimate forensic purpose in issuing a subpoena where it can:

“(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.”

20. But “at least in civil matters, an inability to demonstrate that it is “on the cards” that the documents sought will materially assist the subpoenaing party’s case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.”: at [80]

21. In issue was whether, applying these principles, the orders sought in relation to either subpoena could be made.

22. In the case of the State’s subpoenas, there was also no issue that Mr Keown had waived some of his legal professional privilege over the subpoenaed documents. But that there was such privilege in some of the documents was in issue, although not finally debated on these motions, given Mr Keown’s case that the challenged paragraphs have to be set aside in their entirety, given the applicable principles.

The State’s September motion.

23. In her affidavit Ms Phiri explained the background to this motion, which included:

1. Mr Keown’s March 2023 subpoena, which had required production of the employment records of a named employee, as well as Mr Keown’s records and the investigations which resulted;

2. Hicksons writing to New Path, advising that the alleged perpetrator whose records had been subpoenaed had not been employed at the Centre since May 2004, so that Mr Keown would be unable to establish his claims and proposing that his case be abandoned, with each side to bear its own costs.

3. This not being accepted, the proposed amended statement of claim, the supplementary statement and Mr McKay’s affidavit, which explained how the alleged perpetrator had been wrongly identified, were all served.

4. Mr Keown then serving his August subpoena, which required the production of documents relating to four specified days while Mr Keown was detained at the Centre:

“1.   ….

2.   A copy of the following documents or records from 8 June 2009 to 12 June 2009 (inclusive) at Cobham Juvenile Justice Centre:

List of all staff employees;

Roster of all youth officers;

Staff and volunteer entry and exit sign in sheets;

Staff overtime sheets.”

5. The parties communicating with each other about the legitimate forensic purpose of the subpoena and the relevance of the documents, in the context of what had been decided in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council. Mr Keown explaining that it was pursued in order to help identify the perpetrator, relevant witnesses and policies and procedures in place at the Centre, at the time of the alleged assaults.

6. The parties still not agreeing, with the result the filing of the State’s motion. Its position being that the subpoena was an abuse of process, involved a fishing expedition, the records sought having no apparent relevance, given that Mr Keown could not remember the name of the perpetrator: R v Saleam [1999] NSWCCA 86 at [11]. There it was also explained that “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.”

The parties’ cases

24. The case advanced by the State in its written submission was that:

“11.   The call for documents is fishing, lacks apparent relevance and is otherwise an abuse of process.

12.   The abuse is alleged to have taken place on or around 9 June 2009.

13.   The plaintiff is able to describe the physical appearance of the perpetrator whom he says was male. However, he is unable to recall his name.

14.   In the foregoing content, The “list of all staff employees, roster of all youth officers, staff and volunteer entry and exit sign in sheets, and staff overtime sheets” for the period of 8 – 12 June 2009 where the abuse is alleged to have taken place on or around 9 June 2009 cannot throw any light on the issues in dispute in the proceedings.”

25. In oral submissions it was also argued that because the information sought was not confined to male staff, what was sought was not relevant.

26. The case advanced for Mr Keown in written submissions included that the disputed documents did not involve fishing, because it was wrong to contend that a child sex abuse victim was not entitled to properly investigate the identity of his abuser, as he sought to do. Further, that it was understandable that he did not know the perpetrator’s name, he having been a detained child at the time of his abuse and that the documents:

1. will assist in identifying the perpetrator, Mr Keown having only seen him on the two occasions while they were alone together in a room near reception and a cell, where the sexual abuse occurred, during the four days he was detained at the Centre;

2. will thus narrow the list of those who could have been the perpetrator, by identifying the males who worked in the reception area and the Mandela unit on those days;

3. are relevant to his claims of vicarious liability, given the light they will shed on those permitted to strip search juvenile detainees at the centre and the scope of their duties and responsibilities;

4. will also provide information relevant to breach and foreseeability, given his pleaded risk of harm, that he would be sexually abused while in custody at the Centre.

27. In oral submissions it was also contended that female staff working at the Centre could also have relevant information to give about the operation of the Centre and what they may have witnessed, all relevant to the claims he pursued.

The motion must be dismissed

28. I am satisfied that Mr Keown’s subpoena may not be set aside, the documents sought being apparently relevant as they are to the issues raised by his statement of claim, which are also sought to be pursued by the proposed amended statement of claim. Both in establishing the identity of the unknown perpetrator and the various claims Mr Keown pursues.

29. The pursuit of the investigation into the identity of the alleged perpetrator, undoubtedly establishes a legitimate forensic purpose, relevant as that is to claims which Mr Keown advances.

30. Others employed at the Centre at the time of the alleged abuse may not only be able to shed light on the perpetrators’ identity, but also on claims Mr Keown advances about the State’s alleged negligence and breach of duties which he claims it owed him. It must also be accepted that it is on the cards that the disputed documents will materially assist his case, identifying not only potential witnesses and those working in the vicinity of where he was abused, for example, but also documents and practices at the Centre, relevant to his claims.

31. It follows that the State’s motion must be dismissed.

Mr Keown’s motion

32. The same conclusion cannot be reached in relation to Mr Keown’s motion.

33. The State’s subpoena requires production of:

“1.   ...

2.    In relation to the affidavit of Mr Josh McKay (Mr McKay) affirmed on 28 July 2023 (the McKay Affidavit):

All documents including but not limited to emails, file notes, memoranda and minutes of meetings recording or relating to the content of the conference between Mr McKay and Mr David Keown (the plaintiff) on 28 July 2021 as referred to in paragraphs 5 – 8 and 12 of the McKay Affidavit.

All documents recording or relating to the content of the conferences between Mr McKay and the plaintiff on 4 August 2021, 5 November 2021, 27 January 2022, and 8 February 2022 as referred to in paragraphs 9 and 12 of the McKay Affidavit.

All documents recording or relating to the content of the 3 conferences between Mr McKay and the plaintiff as referred to in paragraph 10 of the McKay Affidavit.

All documents recording or relating to the content of the “sessions” as referred to in paragraph 13 of the McKay Affidavit.

All documents recording or relating to the description provided by the plaintiff of the male officer to Mr McKay as referred to in paragraphs 14 and 15 of the McKay Affidavit.

All documents recording or relating to the instructions obtained by Mr McKay from the ‘number of different individuals who described a similar perpetrator to the description provided by Mr Keown’ as referred to in paragraph 18 of the Mr McKay Affidavit.

All documents recording or relating to the description of ‘Gozzo’ given to Mr McKay as referred to in paragraph 18 of the McKay’s Affidavit.

All documents including but not limited to emails, files notes, memoranda, minutes of meetings, photographs, letters, retainers, advices, retainers, and observations to counsel recording, relating to or constituting the ‘information from other matters’ referred to in paragraph 20 of the McKay Affidavit.

All documents recording or relating to the content of the conference between Mr McKay and the plaintiff on 18 January 2023 as referred to in paragraph 20 of the McKay Affidavit.

All photographs shown to the plaintiff as referred to in paragraphs 21 and 22 of the McKay Affidavit.

All documents recording or relating to the plaintiff having indicated his belief ‘the individual depicted in two photographs was the officer who assaulted him’ as referred to in paragraph 22 of the McKay Affidavit.

All documents recording or relating to the content of the conference between Mr McKay and the plaintiff as referred to in paragraph 23 of the McKay Affidavit.

All photographs identified by the plaintiff and/or Mr McKay as being photographs of Neil Gosling as referred to in paragraph 23 of the McKay Affidavit.

3.   In relation to the ‘Supplementary statement of David Keown’ dated 27 July 2023 (McKeown Statement):

All documents including emails, statements, file notes, memoranda, or minutes of meetings recording or relating to the content of the communications between the plaintiff and Mr McKay as referred to in paragraphs 5 to 15 of the McKeown Statement.

All photographs referred to in paragraphs 12 to 15 and 20 of the McKeown Statement.”

34. Objection is taken only to paragraphs (f), (g) and (h) of this subpoena.

35. In his affidavit Mr McKay explained information sought by the State before the proceedings commenced, including in relation to named officers and Mr Keown’s departmental records. He also explained the circumstances in which the perpetrator came to be named in his statement of claim and how it came to be amended, after advice from the State about the time that the alleged perpetrator had last been employed at the Centre.

36. Mr McKay’s affidavit corroborated relevant aspects of both of Mr Keown’s statements.

37. In his first statement Mr Keown described the alleged perpetrator and the abuse he claims he suffered at the Centre. Despite not knowing the perpetrator’s name, he explained how the perpetrator came to be identified by name in the statement of claim, after Mr McKay showed him certain photographs. In his supplementary statement Mr Keown reiterated that he did not know the perpetrator’s name; he had given Mr McKay a physical description of him, to the best of his ability, given the state of his memory, which he explained. He also said:

“12.   Josh has shown me a number of different photos of different officers who worked at Cobham. There was only one officer whose photos I came back to.

13.   The first time I saw these photos, there were 2 photos of this officer that looked familiar to me but I wasn’t confident or sure. I had to think about it and then I asked to see the photos of that officer again.

14.   At that point, I thought the best that I could recollect was that that was the officer who abused me. The photos looked like they were of someone older than the officer but they looked similar to the person who assaulted me to the point where I was confident in trying to make an identification. I’ve told Josh that I thought that was the officer. Annexed hereto and marked “A” is a copy of the photographs of the person which I identified at the time.”

38. Mr Keown also said that at no stage had he instructed that the named perpetrator had abused him. Rather, he had identified the person who he thought was the abuser, from the photos he was shown by Mr McKay.

39. He also said:

“16.   I have always been so heavily traumatised throughout my life ever since I was abused on 8 June 2009. I have always had these difficult blank spots in my memory where I find it very hard to remember certain things clearly.

17.   For many years after I was abused, I struggled to remember what the person who abused me looked like. I was never letting myself try and picture his face or describe him. I was always trying to push it away from me and try and make it as though it did not happen in my mind.

18.   It got to a point in the last few years where I couldn't really do that so I knew I needed to do something about it.

19.   Once I started talking about it with Josh, I was able to remember some physical features about him as I started to remember more and more about the abuse itself.

20.   When I got to the point of making the identification from the photos, I sincerely believe that I was making a positive identification, but I know now that must not have been correct.

21.   The idea of not being believed about this and having gone through the whole thing is so difficult for me because it was so hard for me to bring it up and talk about it in detail and go through this whole process.

22.   The idea of this issue leading to anyone questioning if it happened makes me feel very angry and outraged because I have told the truth about what happened to me but I’ve always had difficulty trying to identify the person ever since the abuse happened.”

40. It was common ground that the result of how the incorrect person came to be named as the alleged perpetrator and the evidence led for Mr Keown on these motions is that the credibility and reliability of his evidence will be in issue at the trial.

41. Mr McKay explained in his affidavit that he had first been instructed in July 2021 while Mr Keown was in custody. Mr Keown had given him clear instructions about the alleged abuse, but from the outset he had also been consistent in his instructions that he did not know the perpetrator’s name. He also said:

“13.   Further, Mr Keown struggled to physically describe the alleged perpetrator. At each of these sessions he explained to me that he had a visual blank over the years in terms of specifically trying to recall physical details of the alleged perpetrator's face and generally regarding his physical description. He said that he had consciously tried to suppress memories of the abuse.

14.   Following the five sessions with Mr Keown he was able to describe the perpetrator as follows:

‘The person who sexually abused me was a male worker. He was white Australian, solid build, and in his 40s. I have a very clear memory of him being very solid in build. He seemed like he was a white Caucasian guy but he had tanned skin like he was outdoors a lot or something like that. He had a really distinct looking nose. I remember it was like a real beaky looking nose. He had short dark hair, and dark stubble on his face.’

15.   One aspect to the perpetrator that Mr Keown always maintained from the outset of providing instructions and in the subsequent sessions that we had he thought the relevant officer appeared to work in reception, as that is where he saw him initially, and apart from escorting Mr Keown into his cell and further sexually abusing him, he did not see the officer working in the unit.”

42. In his second statement Mr Keown also explained how the alleged perpetrator came to be named in the statement of claim:

“18.    Throughout the course of 2022, I obtained instructions from a number of different individuals who described a similar perpetrator to the description provided by Mr Keown. Some of these individuals were able to recall the nickname ‘Gazzo’. A number of these individuals were able to identify the perpetrator from photographs.

19.   Mr Keown was released from prison in December 2022.

20.   In light of the information provided by Mr Keown in relation to his description of the perpetrator and the aspects to the allegations of sexual abuse, taken in conjunction with information from other matters, on 18 January 2023 I had a further video conference with Mr Keown, whereon I discussed with him whether he would be willing to look at various photos of different officers working at Cobham to see whether he may be able to make an identification.

21.   At no time during the course of any of the conferences set out above, or when the photographs were shown to the plaintiff as set out below, did the plaintiff name the perpetrator as Neil Gosling. The process which was undertaken was that the plaintiff thought he was able to identify the perpetrator by sight, upon identification through the photographs which I showed him.

22.   Mr Keown agreed and I showed him various different photographs, including two photos of the identified perpetrator. Mr Keown reviewed the photographs and indicated that he believed the individual depicted in two photographs was the officer who assaulted him. Annexed hereto and marked "A" are a copy of those photographs.

23.   During the course of that conference, Mr Keown identified photographs of a man we believe is named Neil Gosling. Mr Keown's Statement retained the physical description that he had previously provided of the officer and did not include anything about the officer's name as he had always maintained that he did not remember the name of the officer.”

43. After the proposed amended statement of claim was served, Hicksons sought information about how the alleged perpetrator had come to be named. After a response was provided, the State’s subpoena was issued and objection taken to paragraphs (f), (g) and (h) of the subpoena.

The parties’ cases

44. Mr Keown’s case in written submissions was that what had been subpoenaed by the disputed paragraphs had no apparent relevance to what remained in issue, it being common ground that the named alleged perpetrator cannot have committed the claimed abuse.

45. Further, instructions Mr McKay had received from other unidentified plaintiffs or potential plaintiffs, which had led to that incorrect identification, were not only privileged, but could not shed any light on Mr Keown’s evidence. Either about how the alleged perpetrator initially came to be named, or how the proposed amended statement of claim came to be served:

46. Orally it was argued that what was called for was too broad, not being limited to instructions given by others about the alleged perpetrator’s appearance, but including any instructions they may have given Mr McKay and extending to all specified documents relating to information Mr McKay had obtained, including about “Gozzo”. He was obviously the nickname of the misidentified perpetrator. In the result the disputed documents had no apparent relevance.

47. It followed that the State could not conceivably be entitled to the documents sought. The subpoena could not capture instructions of third parties in relation to matters such as their damages claims and personal circumstances, which could be of no conceivable relevance to anything in issue in Mr Keown’s case.

48. Further, it was also relevant that Mr McKay would not be called to give evidence at trial, none of his evidence about the steps he had taken, which had resulted in the incorrect identification of the perpetrator, being relevant to what would be in issue at trial. Cross examination of Mr Keown about the credibility and reliability of his evidence, could not depend on what Mr McKay had done.

49. The State’s case in written submissions was that the identity of the alleged perpetrator would be an issue at the hearing. Given Mr Keown’s description of the perpetrator, one which on Mr McKay’s evidence was similar to the description other individuals had given him, it was submitted that “At the very least, those ‘instructions’ are capable of assisting in cross-examination, or go to credit, regardless of whether they are admissible. The documents recording or relating to the descriptions of the alleged perpetrator given to Mr McKay by different individuals will also assist the State in understanding the case it is to meet, even if those descriptions do not advance, or assist, the State’s case.”

50. Further, that Mr McKay’s evidence was that some of those individuals were able to recall the name Gozzo. It followed that they might still be able to shed light on the identity of the perpetrator.

51. The information from others, which had led Mr McKay to discuss with Mr Keown the identification he had made from the two photos Mr McKay showed him, could also throw light on the issues in the case. Further, there was no evidence that those individuals to whom Mr McKay had spoken were plaintiffs or potential plaintiffs, or that their communications were privileged.

52. The possibility that the State might call Mr McKay was raised in oral submissions. That finally resulted in a direction that the State inform Mr Keown by the end of January 2024 as to whether it intended to call Mr McKay, so that Mr Keown would have a fair opportunity to consider whether he needed to instruct another solicitor.

The orders sought must be made

53. It is common ground that all the steps Mr McKay pursued, led to Mr Keown naming a person who cannot be the alleged perpetrator.

54. What is now in issue about the disputed documents does not turn on questions of privilege. Mr McKay’s affidavit does raise the possibility that questions of privilege in the documents may arise to be determined, if the challenged paragraphs of the subpoena are not set aside and the State seeks access to them. That is because the third parties Mr McKay spoke to and who provided him with the information which led him to show the photographs to Mr Keown, which resulted in the misidentification of the alleged perpetrator, may have a right to claim legal professional privilege in respect of those documents.

55. Mr McKay was not required for cross-examination. But given his reference in his affidavit to ‘instructions’ he had been given and other ‘matters’ he had been involved in, I consider that it must sensibly be inferred that he was referring to information he had obtained from other clients.

56. That is supported by the State’s submissions and the terms of the subpoena itself. The State explained why it had not yet communicated the problems of form which it had with Mr Keown’s pleadings, by Mr McKay having filed statements of claim in other proceedings in which it had raised problems of form with the pleadings there advanced by his other clients.

57. It follows that Mr Keown’s case, that the documents in issue cannot all be relevant to what is in issue in these proceedings, given the breadth of what the State has subpoenaed, must be accepted.

58. That the use of the introductory words “recording or relating to” in (f) and (g) and the production required by (h), including of photographs, letters, retainers, advices, retainers and observations to counsel about the specified matters, requires production of documents which have no apparent relevance to issues raised by Mr Keown’s pleadings, must also be accepted.

59. It is not for the Court to rewrite that subpoena and so the orders Mr Keown seeks must be made.

60. I am also satisfied that the State has not established that it has a legitimate forensic purpose for what is pursued by these paragraphs. Nor that it is on the cards that production of the disputed documents will assist the State’s defence.

61. Obtaining information about the instructions Mr McKay has been given by other clients about matters unconnected with the identification of the person who abused Mr Keown, is not a legitimate forensic purpose.

62. That the claimed abuse occurred, if that is not admitted by the State, is for Mr Keown to establish. The State has not yet filed a defence, but it is common ground that this does not depend on Mr Keown identifying the perpetrator. The State argued that it was relevant to see documents recording Mr McKay’s instructions, to see whether they matched Mr Keown’s descriptions and whether there was any consistency in the descriptions of that person, because they went to the identity of the perpetrator.

63. But identifying the actual perpetrator will clearly not be part of the State’s case, if it defends Mr Keown’s claims. Nor does his case depend on such identification. And it is not in issue that the person he named in his statement of claim is not the perpetrator.

64. In these circumstances I am not persuaded that it is on the cards that the documents in issue could materially assist the State’s case. Mr Keown has already accepted its position, that he had not correctly identified the alleged perpetrator. That resolving an issue raised by his original statement of claim, as well as providing a basis for his evidence to be attacked at trial.

65. How the perpetrator came to be misidentified will thus be relevant to the credibility and reliability of Mr Keown’s evidence, about which he will no doubt be cross examined. Mr Keown has already been entirely candid about the poor state of his memory and how he came to wrongly identify the alleged perpetrator and he has led evidence from Mr McKay about his involvement in that misidentification, which corroborates aspects of Mr Keown’s evidence.

66. I cannot see that any further light which might be shed on the steps which Mr McKay took, which resulted in the incorrect naming of the alleged perpetrator, he having shown Mr Keown photos of someone who could not be the perpetrator, could shed any further light on the reliability or credibility of Mr Keown’s evidence, or the identity of the real perpetrator.

67. That such steps are of apparent relevance to any other issue in the case, has not been established.

68. In the result the orders Mr Keown seeks must be made.

Costs

69. The usual order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event: r 42.1. In this case that is an order that the State bear Mr Keown’s costs of the motions, as agreed or assessed.

Orders

70. For these reasons I make the following orders:

1. The State’s motion is dismissed.

2. Paragraphs 2(f), (g) and (h) of the State’s subpoena be set aside.

3. The State is to bear Mr Keown’s costs of the motions, as agreed or assessed.

4. The matter is adjourned for the hearing of Mr Keown’s November motion on 5 March 2024.

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Decision last updated: 18 December 2023