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:
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- Case
- [2024] NSWSC 855
- Decision Date
CaseChat Overview and Summary
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.
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