Millington v Peach
[2023] ACTSC 127
•26 May 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Millington v Peach |
Citation: | [2023] ACTSC 127 |
Hearing Date: | 26 May 2023 |
DecisionDate: | 26 May 2023 |
Before: | McCallum CJ |
Decision: | (1) Dismiss the application in proceeding dated 10 May 2023. (2) Stand the subpoena over to 5 June 2023. |
Catchwords: | CIVIL PROCEDURE – INTERLOCUTORY APPLICATION – Application to set aside a subpoena – no apparent relevance of documents sought – where the threshold for relevance is low – where the subpoena may reveal material relevant to cross-examination of a witness |
Cases Cited: | Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 |
Parties: | Christopher Millington ( Plaintiff) Jon Peach ( First Defendant) Justice and Community Safety Directorate ( Second Defendant) |
Representation: | Counsel Self-represented ( Plaintiff) M Hassall ( Defendants) |
| Solicitors Self-represented ( Plaintiff) ACT Government Solicitor ( Defendants) | |
File Number: | SC 23 of 2022 |
McCALLUM CJ:
In these proceedings the plaintiff, Christopher Millington, who is currently serving a sentence of imprisonment at the Alexander Maconochie Centre (AMC), has brought proceedings against the Director-General of the Justice and Community Safety Directorate and an individual alleging a breach of his human rights following his transfer to a different prison in the following circumstances.
On 10 November 2020, there was a riot at the prison. Mr Millington claims he had no involvement in that riot. The riot resulted in the destruction of some of the accommodation at the AMC. As a result, and for prisoner management purposes, some prisoners including Mr Millington were transferred to a New South Wales gaol at Goulburn. It is that transfer which Mr Millington alleges breached his human rights.
The application before the Court today concerns a subpoena issued by Mr Millington, by which he seeks the following documents:
CCTV:
NOVEMBER 10 2020
* AU COMPLEX: All Internal Hallway, Guard Station, Electrical/Power Area & Entrance and Exit Areas. 5Pm [sic] – 11pm.
APRIL 26 2023
* Detainee Admissions entrance from internal jail walkway. 3Pm [sic] – 4pm.
MAY 1st 2023
* Detainee Internal walkway from Cottages Gate towards Health building in front of Central operations Compound. 2Pm [sic] – 3pm.
The subpoena was issued perhaps inappropriately to the ACT Government Solicitor. However, in accordance with that office’s role as a model litigant, that point is not taken. More pertinently, it is submitted that two of the documents sought could not have any conceivable relevance to the issues in the proceedings, being CCTV footage from 26 April 2023 and 1 May 2023. The transfer of Mr Millington to Goulburn occurred shortly after the riot on 11 December 2020.
Prima facie, the objection to the subpoena was accordingly entirely reasonable, there being no apparent relevance of that material. However at the hearing of the application today Mr Millington, who appears for himself, explained from the bar table that he seeks CCTV footage in the areas and on the dates specified in the schedule to the subpoena for the following purpose.
First, he contends that CO4 Moorey was one of the Corrective Service Officers present at the riot attempting to contain control of the rioting prisoners. Secondly, Mr Millington claims that he personally was not involved in the riot and that internal disciplinary documents accept that to be the position. Thirdly, Mr Millington says that recently, and he infers as a result of these proceedings, he has been charged with criminal offences relating to the riot, notwithstanding the passage of time and apparent loss of video material in the meantime. Fourthly, he contends that on the dates and at the places identified in the schedule to the subpoena CO4 Moorey approached him and made comments to him directly relating to the fact that he is bringing these proceedings.
Having regard to the relatively low test for the production of documents stated by the New South Wales Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [40], I am satisfied that the subpoena has a legitimate forensic purpose. Based on Mr Millington’s contentions, it is “on the cards” that the CCTV footage may provide material as to which he would cross-examine CO4 Moorey if that officer is called as a witness in the proceedings. He is not currently anticipated to be on the defendant’s witness list but that may change. Further, it is not inconceivable that, in response to submissions from Mr Millington, the Court would call that officer as a witness if he is established to be sufficiently important to Mr Millington’s case.
In any event, on the relatively low test to which I have referred, it seems to me that there is a legitimate forensic purpose for the documents sought and accordingly I decline to set aside the subpoena.
I note that item 1 in the schedule seeks footage from the date of the riot, 10 November 2020. Mr Hassall has informed the Court that the defendant’s position in respect of that item in the subpoena is that there is nothing to produce.
For those reasons, I order the following:
(1)Dismiss the application in proceeding dated 10 May 2023.
(2)Stand the subpoena over to 5 June 2023.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 8 August 2023 |