Nandutu v The University of Sydney (No 3)
[2018] NSWSC 1124
•20 July 2018
Supreme Court
New South Wales
Medium Neutral Citation: Nandutu v The University of Sydney (No 3) [2018] NSWSC 1124 Hearing dates: 16 July 2018 Date of orders: 20 July 2018 Decision date: 20 July 2018 Jurisdiction: Common Law Before: Schmidt J Decision: (1) The subpoenas addressed to Associate Professor John O’Byrne, Associate Professor Peter McCallum and Ms Pearl Rozenberg are set aside.
(2) Unless the parties approach within 7 days, Ms Nandutu is ordered to pay the University's costs, as agreed or assessed.Catchwords: PROCEDURE – subpoena - notice of motion – setting aside subpoenas – documents sought not in the person’s custody, care or control – subpoena seeking information not documents – orders made – costs Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Southern Pacific Hotel Services Inc v Southern Pacific Hotel [1984] 1 NSWLR 710 Category: Procedural and other rulings Parties: Susan Nandutu (Plaintiff)
The University of Sydney (Defendant)Representation: Counsel:
Solicitors:
M Gaven (Defendant)
Ms Nandutu, unrepresented (Plaintiff)
MinterEllison (Defendant)
File Number(s): 2017/287280 Publication restriction: Nil
Judgment
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By amended motion of 10 July 2018 the University of Sydney seeks orders under Rule 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) setting aside subpoenas issued on Ms Nandutu’s application to Associate Professor McCallum, Associate Professor O’Byrne and Ms Rozenberg. There is no question that the University has standing to have these subpoenas set aside, given the documents sought to be produced.
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The affidavit of the University’s solicitor, Ms Ristic, of 3 July disclosed that on 20 June the Registrar directed Ms Nandutu to file an application for leave to issue subpoenas. On 26 June the University explained to Ms Nandutu its objection to those subpoenas and invited her to address a subpoena instead to the University’s proper officer.
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On 27 June Ms Nandutu filed the three subpoenas and on 2 July the University again explained its objections and asked her to withdraw them, advising, amongst other things, that the subpoenas related to its records and that they were oppressive in form. On 3 July the University filed its motion and on 6 July the subpoenas were returnable before the Registrar, when there was no appearance for Ms Nandutu and the University’s motion was listed for hearing.
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Ms Nandutu’s 8 July affidavit explained that she had not appeared before the Registrar on 6 July, but had then gone to enquire of Registry staff as to whether documents had been produced in response to the subpoena. She opposed the orders sought in the motion, contending that by these subpoenas she sought to demonstrate that documents which had been relied on when a decision was made which resulted in the University’s termination of her PHD candidature, had been falsified.
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On 9 July, a further effort was made by the University to resolve what lies in issue, its solicitors advising Ms Nandutu as to categories of its documents which it would not object to producing to her. That did not resolve what lies in issue, even in part.
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That Ms Nandutu’s approach accorded with the requirements imposed upon her by s 56(3) of the Civil Procedure Act 2005 (NSW), is difficult to see, that imposing on the parties a duty to assist the Court to further the overriding purpose specified in s 56(1), “to facilitate the just, quick and cheap resolution of the real issues in the proceedings.” The difficulty may be explained by the fact that while previously represented in the proceedings, Ms Nandutu is now unrepresented. Even so this duty and the requirements of the Uniform Civil Procedure Rules, which apply to all litigants, apply to her and must be taken into account, when she decides on the course she elects to pursue in these proceedings.
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Rule 33.4 empowers the Court to set aside a subpoena, which may not be used as a substitute for discovery and where the subpoena is oppressive.
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A subpoena must identify the documents sought to be produced to the Court. The identifying words there used must be interpreted in a commonsense way, from the perspective of its recipient, acting as a reasonable person with knowledge of the surrounding circumstances: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Limited [1984] 1 NSWLR 710 at 720. A subpoena which identifies documents only by reference to issues lying between the parties in the proceedings will not have sufficient particularity: at 718.
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The documents sought must also be of apparent relevance to what lies in issue in the proceedings, either going to proof of facts in issue, or to support a conclusion or proposition that has an arguable relevance to the proceedings. What is in issue depends on the parties’ pleaded cases. It need not be intended that they be tendered.
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The production required must also comply with the overriding purpose specified in s 56 of the Civil Procedure Act and the objects of case management specified in s 57(1), respectively the just, quick and cheap resolution of the real issues in the proceedings and:
“(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.”
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On the case which Ms Nandutu advanced in opposition to the motion, there is no question that what she seeks is production of the University’s documents. Those to whom her subpoenas are addressed were members of the body which made the decision which resulted in the University’s termination of her PHD candidature. As University employees it is possible that they might be able to access the University’s policies and the records it keeps in relation to Ms Nandutu and her PHD candidature, as she contends. Many of them appear to be maintained electronically. Nevertheless, on the case she advanced, they are documents which belong to the University and are not documents within the care, control or custody of those to whom the subpoenas are directed.
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Ms Nandutu is undoubtedly dissatisfied with the University’s decision to terminate her PHD candidature, which resulted from views formed by those to whom the subpoenas were addressed. From her submissions she believes that those views rested on falsified information, but her pleaded case is not yet finalised.
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Ms Nandutu’s motion for leave to amend her statement of claim is listed for hearing on 11 September. At the hearing of the University’s motion she produced for the first time another amended statement of claim, which she advised she intended to press at the hearing of her motion. After the hearing of the University’s motion, she sent an email advising my Associate that this document should be disregarded and that she would have “the update document” by the end of the week.
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This underscored that the University was correct in submitting that because the pleadings have not closed, it is not yet clear what the real issues lying between the parties in the proceedings will be.
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In its submissions the University has identified categories of its documents which it is prepared to produce, but that also did not satisfy Ms Nandutu. Her case remained that the decision to terminate her candidacy was made on falsified information and she needed the subpoenas to be answered by those to whom they were addressed, in order to obtain the justice which she seeks.
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Despite these submissions, I am satisfied that the orders which the University seeks must be made.
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It is not for the Court to advise Ms Nandutu as to how she must frame any subpoena which she seeks to have issued, but if a subpoena does not comply with the requirements of the Rules, it will be set aside on application.
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On the subpoenas as framed, what Ms Nandutu undoubtedly seeks is the production of the University’s documents, as well as other information. It is not appropriate for the Court to require the recipients of the subpoenas to produce such documents, even if it could be satisfied that could access them.
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Parts of what Ms Nandutu has sought to have produced also involves impermissible discovery, because of the way the subpoenas have been framed. In part it is also not documents, but information, which is apparently sought.
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To illustrate these problems, the subpoenaed directed to Mrs Rozenberg, for example, requires:
“3. The Applicant seeks further attention to any names of PhD supervisors, who undertook and provided supervision, academic support, monitoring, appraisal and reporting for the Applicant's PhD candidature from 2012 to 26 August 2014, and from November 2014 to 24 June 2015, with details of the specific periods the aforementioned functions were undertaken, in the period specified.
4. The Applicant seeks material on any procedural requirements SMS engaged in, depicting PhD supervision and academic support for the Applicant, from 2012 to 24 June 2015.”
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Subpoenas are not a mechanism by which such information can be sought. They must be directed to the production of relevant, existing documents, sufficiently identified so that the request does not amount to one for impermissible discovery.
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For all of these reasons, the subpoenas must be set aside.
Costs
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The usual order under the Rules as to costs is that they follow the event with the result in this case, that Ms Nandutu must be ordered to pay the University's costs of its motion, as agreed or assessed. Unless the parties approach within 7 days to be heard, that will be the Court’s order.
Orders
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For these reasons, I order that:
The subpoenas addressed to Associate Professor John O’Byrne, Associate Professor Peter McCallum and Ms Pearl Rozenberg are set aside.
Unless the parties approach within 7 days to be heard, Ms Nandutu is ordered to pay the University's costs of its motion, as agreed or assessed.
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Decision last updated: 20 July 2018
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