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Lawrence v Commissioner of Corrective Services

Lawrence v Commissioner of Corrective Services

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Case Copied 15 July 2024 48 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Lawrence v Commissioner of Corrective Services [2024] NSWSC 855
Hearing dates: 26 June 2024
Date of orders: 15 July 2024
Decision date: 15 July 2024
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) I vary the order of the Registrar made 23 March 2024 by setting aside the subpoena issued by the plaintiff on1 December 2023 except as to paragraphs 6 and 9c.
(2) The Proper Officer, DCJ Legal, Department of Communities and Justice is to produce documents (if any) referred to in paragraphs 6 and 9c subject to any claim for client legal privilege and public immunity by 22 July 2024.
(3) In lieu of the costs order made by the Registrar, the plaintiff is to pay 80% of the defendants’ costs of the application before the Registrar.
(4) The plaintiff is to pay 80% of the defendants’ costs of the present notice of motion.

Catchwords:
CIVIL PROCEDURE – subpoenas – review of Registrar’s decision to set aside – subpoena issued in administrative law proceedings – review of decisions to place plaintiff in protective and segregated custody whilst on remand – legal unreasonableness – where decision-makers provided statements of reasons – where subpoena sought documents relating to the preparation of those reasons – where plaintiff seeks to challenge credit of decision-makers through cross-examination – misapprehension of administrative law proceedings – credibility not in issue – not a merits-based inquiry – except in two instances decisions-makers have appropriately annexed documents they relied on – legitimate forensic purpose in seeking documents referred to but not annexed – remainder of subpoena goes beyond what is needed for proper conduct of proceedings – subpoena set aside except for two paragraphs

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW) ss 10, 11, 72A
Crimes (Administration of Sentences) Regulation 2014 (NSW)
Supreme Court Act 1970 (NSW) ss 23, 69, 75A
Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 33.6, 49.19, 59.7, 59.9

Cases Cited:
Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18
Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935
One Tel (in liq) – SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491
Park Oh Ho and Ors v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637; [1989] HCA 54
Portal Software v Bodsworth [2005] NSWSC 1115
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Thomas v SMP (International) (No 2) [2010] NSWSC 870
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Trade Practices Commission v Arnotts (Limited) No 2 (1989) 103 ALR 90; [1989] FCA 340

Texts Cited:
Nil

Category: Procedural rulings
Parties:

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: [2024] NSWSC 855
Decision Date: 15 July 2024

CaseChat Overview and Summary

In Lawrence v Commissioner of Corrective Services, the plaintiff sought a review of a decision made by the Registrar of the Federal Circuit and Family Court of Australia to set aside a subpoena issued in administrative law proceedings. The plaintiff, a remand prisoner, sought to challenge the decisions to place him in protective and segregated custody through cross-examination of the decision-makers. The subpoena sought documents relating to the preparation of the reasons for those decisions. The Commissioner of Corrective Services challenged the subpoena on the grounds of legal unreasonableness and sought its setting aside.

The court was required to determine whether the subpoena was legally unreasonable and if it was set aside, whether any parts of it should be reinstated. The court considered whether the plaintiff had a legitimate forensic purpose in seeking the documents and if the subpoena went beyond what was needed for the proper conduct of the proceedings. The court found that the plaintiff had a legitimate forensic purpose in seeking the documents referred to in the reasons for the decisions, but not those that were annexed. The court also found that the subpoena went beyond what was needed for the proper conduct of the proceedings in all but two instances, where the decision-makers had appropriately annexed the documents they relied on.

The court set aside the subpoena except for two paragraphs that sought documents relating to the preparation of the reasons for the decisions to place the plaintiff in protective and segregated custody. The court found that these two paragraphs were necessary for the proper conduct of the proceedings and that the plaintiff had a legitimate forensic purpose in seeking them. The court noted that the plaintiff's challenge to the credit of the decision-makers was not a merits-based inquiry and that credibility was not in issue. The court also noted that the subpoena was issued in administrative law proceedings and not in a merits-based inquiry. The court made orders setting aside the subpoena except for the two paragraphs that were necessary for the proper conduct of the proceedings.

The court ordered that the Registrar of the Federal Circuit and Family Court of Australia set aside the subpoena issued in the administrative law proceedings except for two paragraphs that sought documents relating to the preparation of the reasons for the decisions to place the plaintiff in protective and segregated custody. The court noted that the plaintiff had a legitimate forensic purpose in seeking these two paragraphs and that they were necessary for the proper conduct of the proceedings. The court also noted that the subpoena went beyond what was needed for the proper conduct of the proceedings in all but two instances, where the decision-makers had appropriately annexed the documents they relied on.

Orders