Nichles v The King (No 2)

[2024] NSWDC 626

District Court

New South Wales

Medium Neutral Citation:

Nichles v R (No 2) [2024] NSWDC 626

Hearing dates:

17, 23 September 2024

Date of orders:

23 September 2024

Decision date:

23 September 2024

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

The appeal is dismissed.

Catchwords:

Appeal from Local Court – The Deputy Registrar at Waverly refused to issue a large number of subpoenas which the appellant wanted to be issued – Appellant initially appealed to a magistrate at Waverly, but did not appear either in person or AVL – The Magistrate dismissed the appeal – Held: no appeal lies to the District Court from an interlocutory decision – In any event the subpoenas were oppressive and there appears to be no legitimate forensic purpose for them.

Legislation Cited:

Nil.

Cases Cited:

Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 at [22].

Hearne v Street (2008) 235 CLR 125.

The Queen v Saleam (1989) 16 NSWLR 14.

Texts Cited:

Nil.

Category:

Principal judgment

Parties:

Crown – R (NSW)
Appellant - Kimberley Nichles

Representation:

Counsel:
Crown – Ms Ng, L.
Appellant – Self-represented.

Solicitors:
Crown – Office of the Director of Public Prosecutions (NSW).
Appellant – Self-represented.

File Number(s):

2024/00065034

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

9 August 2024

Before:

Magistrate Shields

Judgment

1. HIS HONOUR: Earlier today, I gave judgment in an appeal brought by Ms Kimberley Nichles against a decision of Magistrate Milledge made on 24 July 2024. I sought to summarise those proceedings in giving that decision. This is a second appeal by Ms Kimberley Nichles, this appeal being against an order made by Magistrate Shields sitting in the Waverley Local Court on 9 August 2024.

2. On 28 July 2024, the appellant made a declaration on a number of subpoenas. They were filed in the Local Court at Waverley but were returnable at the Local Court at Maitland on 14 August 2024. The subpoenas were addressed to the Commissioner of the NSW Police Service; Maria Pandora Nichles of Bondi, who may well be the mother of Adam James Nichles; the Commissioner of the Queensland Police Service; the proper officer of Telstra at an address in Melbourne, Victoria; the proper officer of Singtel (Optus), the Legal Enforcement Conduct Commission of this State; the proper officer or Commissioner of the Crime and Corruption Commission of the State of Queensland; the Australian Criminal Intelligence Commission; the Commissioner of the Australian Federal Police; the proper officer of TPG Telecom Limited; and Adam James Nichles, the complainant in the substantive proceedings before the Local Court at Waverley.

3. The subpoenas themselves have all the hallmarks of each being a fishing expedition. On 31 July 2024, the deputy registrar of the Local Court at Waverley, Ms Louise McQuarrie refused to issue the subpoenas endorsing on a copy of each, this:

"Pursuant to the Local Court Rules 6.2(2)(b), I have refused to issue this process on the grounds that it, the issue of the subpoena, will be oppressive to the party named."

4. On 9 August 2024, the appellant Kimberley Nichles issued another set of subpoenas to be issued by the registrar of the Local Court at Waverley returnable for the Local Court at Maitland on 23 August 2024. The subpoenas were addressed to Dr Leigh Rutherford, a specialist endocrinologist practising at the Pacific Private Clinic in Southport in the State of Queensland. The first prayer for relief in that was to produce all complete unredacted medical, business, and administrative records held from November 2008 to the present day included but not limited to emails, letters, scans, results, referrals, prescription, medical notes, hospital records, surgical notes, reports of correspondence to and from the patient and/or from any general practitioners, specialists, counsellors, legal practitioners, and any other person for the patient Adam James Nichles and then is recorded a number of personal details said to identify the patient.

5. The second such subpoena was addressed to the proper officer of IPN Medical Centres (Queensland) Pty Limited, seeking medical records of herself, her former husband, and their three children for the period from January 2011 to the date of service of the subpoena. Another subpoena is addressed to QScan radiology in the State of Queensland to produce medical records in respect of the appellant, the complainant in the Local Court, and their three children.

6. A subpoena addressed to Royal Prince Alfred Hospital seeks all the medical, business, and administrative records held by the hospital in respect of the complainant.

7. The next subpoena is addressed to the proper officer of Capital Health Limited of East Melbourne, Victoria, seeking all medical records, all business records, and administrative records held from January 2011 to the time of service concerning the appellant, the complainant, and their three children.

8. The next subpoena is addressed to the Australian Judicial Officers Association (AJOA), seeking all records relating to the appellant, the complainant, and their three children held on a number of AJOA databases including handwritten documents or notes electronically typed files of any type, audio files of any type, video files of any type, any other medium or format used by AJOA, and all complete unredacted copies with persons fully identifiable in the following sources: meeting notes, meeting minutes, notes, records, phone communications and logs, notes taken regarding phone calls communications, text message communications, email operations, and all interactions between AJOA members and any citizen, representative of citizen, a legal practitioner, a judicial officer, registrar, or other court personnel, police officers, State and federal police departments, State and federal public officials, ministers, politicians, and their personnel, State and federal government departments and/or their personnel, media outlets, media organisations, or journalists and so on in respect of the appellant, the complainant, and their three children; and a complete list of members of the AJOA including their full names, their judicial roles, their court or tribunal which they might represent, their member level, member status, the date they joined the AJOA, role and/or committee role of current members, previous members, and retired members.

9. I have to declare that I am a member of the AJOA, and have been now for 30 years. What the purpose of this subpoena for production is, I know not. The AJOA is commonly referred to as the Judges’ “Trade Union”. How that could have any relevance to an alleged breach of an ADVO at Bondi on 24 December 2023 is quite beyond me.

10. The next subpoena is addressed to Dr Richard Adams at Southport, again requiring production of records relating to the complainant.

11. The next subpoena is addressed to the proper officer of Services Australia, requiring records including records of Medicare benefits, pharmaceutical benefits, and notice of past benefits in respect of the appellant, the complainant, and their three children going back to 2008.

12. The next subpoena is addressed to the proper office of Integral Diagnostics Limited of Mermaid Beach in the State of Queensland, seeking medical records of the appellant, the complainant, and their three children, going back to January 2011.

13. The next subpoena is addressed to the President of the Mental Health Review Tribunal, again seeking all records of the tribunal with respect to the appellant, the complainant, and their three children, going back to November 2008.

14. The next subpoena is addressed to the proper officer of Gold Coast Health, seeking complete medical, business, and administrative records held from November 2008 concerning the appellant, the complainant, and their three children.

15. The next subpoena is addressed to the proper officer of Queensland Health, again seeking from November 2008 all medical, business, and administrative records held concerning the appellant, the complainant, and their three children.

16. The next subpoena is addressed to the proper officer of Sonic Healthcare whose global head office was in George Street, Sydney, to produce every medical record and other records relating to the appellant, the complainant, and their three children going back to January 2011.

17. The next subpoena is addressed to Sydney Local Area Health District and again seeks all records of a medical nature and including business and administrative records going back to November 2008 concerning the complainant.

18. Upon each of those subpoenas, the deputy registrar at Waverley typed this:

"Pursuant to the Local Court Rules 6.2(2)(b), I have refused to issue this process on the grounds that issue of the subpoena would be oppressive to the person named."

The deputy registrar dated that decision on 9 August 2024.

19. There is before me as Exhibit 4 a transcript of proceedings before Magistrate Shields sitting in the Local Court at Waverley on 9 August 2024. Sergeant White appeared for the respondent. There was no appearance in Court by the applicant, she clearly being granted leave to appear by AVL. The transcript records his Honour as saying this:

"I have before me an application by Kimberley Nichles for a review of a registrar's decision relating to the issue of a subpoena. The applicant is given leave to appear remotely, and the court officer tried to call her on five occasions this morning without success. The application is accordingly dismissed in default of appearance.”

20. The Notice of Appeal to this Court was filed at Newcastle on 14 August 2024. There are three enumerated grounds of appeal at the commencement of a nine-page appeal document. The three grounds enumerated are these:

"1. His Honour acted failed [sic] to properly and fairly exercise jurisdiction, acting with procedural unfairness by failing to give the applicant the opportunity to present her application in a formal hearing, by failing to acknowledge a standard technology failure had occurred and to stand the matter down until later in the day so the applicant could be contacted and arrangements properly made.

2. His Honour acted failed [sic] to properly and fairly exercise jurisdiction, acting with procedural unfairness in failing to manage his own registrar who made error in communicating with the applicant, telling her on email to 'dial into courtroom 1' but in the same email message failed to give her any dial in details or direct number to discuss with her directly the arrangements for hearing. By the time the applicant went through the call centre around 20 minutes later, the magistrate had already dismissed the matter. A call recording of the call centre employee and the registrar's email are both available as evidence.

3. His Honour failed to properly and fairly exercise jurisdiction in the absence of the applicant where his Honour failed to follow Magistrate Milledge's orders to issue every subpoena the defendant had requested. The applicant already had judicial permission to issue subpoenas 'for any other items she may require'. A registrar therefore had no right to refuse these subpoenas for any reason whatsoever. Her Honour Magistrate Milledge's comments in her reasons state:

'The Court has ordered a brief of evidence to be served 14 days prior to hearing. The defendant can issue subpoenas for any other items she may require to prepare for the hearing on 11/11/24.'"

21. No magistrate or judge would give any litigant the right to issue every subpoena a party had requested to issue. That is because many subpoenas are issued which are too wide or too onerous or have insufficient time to reply to them. The order which the appellant recorded her Honour as making was to issue subpoenas 'for any other items she may require'. That is items that were not contained in the brief of evidence to be served in the case.

22. The normal practice is for the registrar of a Court to refuse to issue a subpoena if it be oppressive in any fashion. That is what the registrar purported to do. Clearly, when one considers what was asked for in the various subpoenas that were sought to be issued, the registrar was right to do so.

23. The appellant was then given a right to appeal the registrar's decisions to a Magistrate in the Local Court. Those proceedings come on for hearing before Magistrate Shields. The appellant decided not to appear in person but to appear via AVL. She however did not appear either in person or via AVL. In the Notice of Appeal, the appellant says that she was not given sufficient information to be able to access the Court online.

24. However, if that be correct, then the appropriate thing to do rather than filing a Notice of Appeal in the courthouse at Newcastle five days after the event was to write to the Magistrate or registrar, telling the Magistrate or registrar what had happened and how there had been some technological failure according to the appellant and could she please be given a further date so that she could contact the court and deal with the issue.

25. In any event, this was an interlocutory decision. And for reasons which I gave in the first appeal which I dealt with today, this Court has no jurisdiction to entertain the appeal, only having jurisdiction to entertain an appeal from a final order made by the Local Court either by way of conviction or sentence or both.

26. In any event, were it open to me to decide the matter in substance, the subpoenas are clearly oppressive. How the children's medical records could at all be relevant to the issue of what happened on 24 December 2023 at Bondi is not remotely intelligible, not remotely relevant to that issue.

27. An appellant is required to satisfy the Court that there is a legitimate forensic purpose for accessing the documents requested. As such, it is consistent with the decision of Commissioner of Police v Tuxford & Ors [2002] NSWCA 139 at [22]. In order to prove that there is a legitimate forensic purpose, the appellant must satisfy the Court that it is "on the cards" that the documents would materially assist her in her defence: R v Saleam (1989) 16 NSWLR 14. It is also clear from the earlier appeal which I dealt with and from this appeal, that many of the documents are sought for an ulterior purpose.

28. On page 7 of the Notice of Appeal to this Court that I dealt with earlier today, the appellant said, "If permanent stay is granted, the same subpoenaed information is still required for further related proceedings in the same Court." That is an admission that the subpoenas were issued for an ulterior purpose. Furthermore, issuing a subpoena for an ulterior purpose and using that material for the ulterior purpose is inconsistent with what is called the Harman undertaking that information obtained by subpoena cannot be used for a collateral or ulterior purpose unrelated to the proceedings for which the information was obtained. This is not only a substantive legal obligation owed to the party producing the documents, but it is also a substantive legal obligation owed to the Court: Hearne v Street (2008) 235 CLR 125.

29. The appellant has not stayed in Court to prosecute this appeal. So, I am only aided by what she stated in the Notice of Appeal which I have sought to summarise earlier. For those reasons, this appeal is dismissed as well.

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Decision last updated: 28 January 2025