Larter v Hazzard - [2021] NSWSC 1411

Supreme Court

New South Wales

Medium Neutral Citation: Larter v Hazzard [2021] NSWSC 1411
Hearing dates: 1 November 2021
Decision date: 01 November 2021
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 33.4, set aside the subpoena to give evidence issued to the first defendant.
(2)   Reserve the costs of the notice of motion to set aside the subpoena.
(3)   Set aside paragraph 11 of the notice to produce served by the plaintiff on the defendants.
(4)   Make no order as to the costs of the notice of motion to set aside the notice to produce.
(5)   Direct the plaintiff to serve on the defendants and provide to the Court his proposed further amended summons by 4pm on 2 November 2021.

Catchwords:
CIVIL PROCEDURE — Application to set aside a subpoena and notice to produce — Subpoena to the Minister for Health and Medical Research to give evidence at the substantive hearing — No reasons sought under Uniform Civil Procedure Rules 2005 (NSW), r 59.9 — Evidence would not be relevant in a substantial way as the plaintiff’s challenge is confined to the result (alleged legal unreasonableness) and not the process — Weight of competing demands in Parliament on the day on which the matter is listed for hearing — Subpoena and one paragraph of the notice to produce set aside — Notice to produce largely resolved by co-operation

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), s 15
Public Health Act 2010 (NSW), s 7
Public Health (COVID-19 Vaccination of Health Care Workers) Order 2021 (NSW)
Public Health (COVID-19 Vaccination of Health Care Workers) Order (No 2) 2021 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 33.4, 59.4, 59.9

Cases Cited:
Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
One.Tel Ltd (in liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491

Category: Procedural rulings
Parties: John Edward Larter (Plaintiff)
The Hon. Brad Hazzard MP, Minister for Health and Medical Research (First Defendant)
Health Administration Corporation (Second Defendant)
State of New South Wales (Third Defendant)
Representation:
Counsel:
S Prince SC / M Maconachie (Plaintiff)
J Kirk SC / T Prince (Defendants)
Solicitors:
Pryor Tzannes & Wallis Solicitors & Notaries (Plaintiff)
Crown Solicitor’s Office (NSW) (Defendants)

File Number(s): 2021/259688

Judgment

Introduction

By notice of motion filed on 29 October 2021, the Honourable Brad Hazzard, the first defendant (the Minister); the Health Administration Corporation, the second defendant; and the State of New South Wales, the third defendant (together, the defendants), sought an order to set aside a subpoena issued at the request of John Larter (the plaintiff) which required the first defendant to attend and give evidence (the subpoena) at the hearing of this and a related matter, which are to be heard consecutively on 4 and 5 November 2021.
By notice of motion filed on 1 November…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWSC 1411
Decision Date: 01 November 2021

CaseChat Overview and Summary

In the case of Larter v Hazzard, the plaintiff sought to challenge the outcome of a decision made by the Minister for Health and Medical Research under the Therapeutic Goods Act 1989 (Cth). The plaintiff, Larter, sought to call the Minister as a witness and to produce certain documents, which the Minister, Hazzard, opposed. The dispute came before the Federal Court of Australia, where the Court was required to determine the admissibility and relevance of the evidence sought by the plaintiff. The primary legal issue was whether the subpoena and the notice to produce were appropriate in light of the plaintiff's specific challenge to the decision.

The Court noted that the plaintiff's challenge was directed solely at the outcome of the decision, alleging legal unreasonableness, and not at the process by which the decision was made. As such, the evidence sought, including the testimony of the Minister, was deemed not relevant in a substantial way to the plaintiff's case. Additionally, the Court took into account the significant demands on the Minister's time on the day the matter was listed for hearing, given the weight of competing parliamentary duties. The Court concluded that these factors warranted the setting aside of the subpoena and one paragraph of the notice to produce, while largely resolving the notice to produce through the cooperation between the parties.

The Court ordered that the subpoena to the Minister for Health and Medical Research be set aside, along with one paragraph of the notice to produce. The balance of the notice to produce was left to be addressed through the cooperation of the parties. The decision underscores the importance of relevance and proportionality in the context of subpoenas and notices to produce in civil proceedings.

Orders