Potier v North Queensland Regional Council

[2013] QSC 344

SUPREME COURT OF QUEENSLAND

CITATION:

Potier v North Queensland Regional Council & Ors [2013] QSC 344

PARTIES:

MALCOLM HUNTLEY POTIER
(plaintiff)
v
THERESE O’HALLORAN
(first respondent)
and
ROBYN DUNN
(second respondent)
and
DIMITRA FOTINOS
(third respondent)
and
LEANNE SCOINES
(fourth respondent)
and
DIANE NASH
(fifth respondent)
and
COMMISSIONER FOR CHILDREN AND YOUNG PEOPLE AND CHILD GUARDIAN

(sixth respondent)

FILE NO/S:

BS 8956 of 2012

DIVISION:

Trial Division

PROCEEDING:

Interlocutory Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

4 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

4 December 2013

JUDGE:

Philip McMurdo J

ORDERS:

1.   The application to have the Court make some order or issue a subpoena to the end of procuring the personal attendance of the applicant in Court for the final hearing is refused.

2.   The respondents produce to the applicant by posting to him the documents referred to in paragraph 4 of the respondent’s outline of argument filed on 2 December 2013, those documents to be posted by 18 December 2013.

3.   Costs of today’s application will be reserved.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – where the applicant is serving a term of imprisonment in New South Wales – where the applicant sought to have the court ensure his personal attendance before the court on the final hearing of the originating application – whether the Queensland Supreme Court has the power to require the applicant’s attendance under s 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) – whether the Queensland Supreme Court is empowered to order the transfer of a New South Wales prisoner to another state under s 29 of the Crimes (Administration of Sentences) Act 1999 (NSW) – whether it is necessary in the interests of justice to exercise a power to order the applicant’s personal attendance at the final hearing

Crimes (Administration of Sentences) Act 1999 (NSW), s 29, s 77

COUNSEL:

The applicant appeared on his own behalf

A Scott for the respondents

SOLICITORS:

The applicant appeared on his own behalf

Crown Solicitor for the respondents

HIS HONOUR: The proceeding for relief under the Judicial Review Act was set down for hearing for today until a judge in the applications list ordered that instead the hearing today resolve some interlocutory questions. Those questions concern the oral testimony or availability for oral testimony of each of the various respondents and the personal attendance or otherwise before this court, on the final hearing, of the applicant, who is currently serving a term of imprisonment in New South Wales.

When the questions for today were identified by the judge in the applications list, they also included a question about the production of documents by the respondents. But as I will discuss, that question is no longer alive because the respondents have agreed to provide the documents which have been requested, subject to a valid claim for privilege.

I go first to the applicant’s presence at the final hearing.  The applicant suggests that by one of two means this court can and should procure his personal attendance in court. 

The first of those suggestions is that the court should permit its process in relation to subpoenas to be used by issuing a subpoena addressed to the applicant himself, requiring his attendance for the purposes of giving evidence.  However, the applicant’s evidence will be given by affidavit subject to the possibility of any cross-examination.  It is unnecessary for the process of a subpoena to be used by him to enable him to give evidence in his case.  And the proposed employment of the procedure of a subpoena in this way would seem to me to be a misuse of the process.

His second suggestion is that the court has power to require his attendance under section 77 of the Crimes (Administration of Sentences) Act 1999 of New South Wales. That provides that if an appropriate authority is satisfied that it is necessary that an inmate should attend before it for the purposes of any legal proceeding, inquest or inquiry, and the absence of the inmate may prejudice the rights of a party, the authority may make an order directing the Commissioner to cause the inmate to be produced at the court or other place at which the proceeding, inquest or inquiry is being or is to be held.

It further provides that an inmate produced in accordance with such an order is taken to be in lawful custody while in the actual custody of the general manager, a correctional officer, a sheriff’s officer or a police officer. Section 77(5) defines the term “appropriate authority” to mean a court, a Coroner, or the Independent Commission Against Corruption in New South Wales, a royal commission, the Victims Compensation Tribunal of that State and senior administrative of a court or a person prescribed by the regulations for the purposes of that definition. The term court is defined within the same subsection to include a number of courts, including, “any other court or body prescribed by the regulations for the purposes of this definition.”

Counsel for the respondents says that this court is not prescribed by such a regulation. The applicant, as I understand his argument, did not suggest that in fact there was such a regulation; rather his submission is that notwithstanding that definition of court and notwithstanding that the references to a court within a statute of New South Wales would ordinarily be interpreted as a reference to a court in New South Wales (see section 12 of the Interpretation Act 1987 of New South Wales) the term court within section 77 includes the Supreme Court of Queensland. I am not persuaded by that submission. As I read section 77, absent a regulation prescribing this court as a court for the purposes of that section, there is no power in this court to make an order under section 77 as the applicant suggests.

The applicant also refers to section 29 of the Crimes (Administration of Sentences) Act 1999. That provides for permission to be granted in certain circumstances for the travel of a New South Wales prisoner to another state. But it does not empower this court to order such a transfer or to grant such permission.

Therefore, there is no demonstrated power in this court to require the personal attendance of the applicant as he suggests. But if such a power existed there would then be a further question as to whether it is necessary in the interests of justice in this case that it be exercised in the applicant’s favour.  The applicant submits that he would be materially disadvantaged by not being able to be personally present in court to present his case.  He suggests that there should be, in all relevant respects, an equality between the position of the parties. At the moment, I do not see anything about the circumstances of this case that would prevent a fair hearing of it with the applicant presenting his case, as he did this morning, by videolink.  Therefore, the application to have the court make some order or issue a subpoena to the end of procuring the personal attendance of the applicant in court for the final hearing should be refused.

The next of the issues concerns the position of four of the six respondents and whether as deponents of affidavits they should be required to be present for cross-examination.  The onus here is upon the respondents, according to rule 439 of the Uniform Procedural Rules, to establish that the affidavits should be allowed to be read at the final hearing without the deponents being available to be cross-examined.  The submission for the respondents is that none of the respondents has had any personal involvement with the decision which is impugned.  It is said that that readily appears from each of their affidavits and that their evidence in the affidavits has been effectively limited to the production and discussion of documents which appear on relevant files.

The applicant’s case is that these persons were in positions in which each had a statutory responsibility for the decision which is impugned.  I have to say that that contention is far from established on the material which I have seen, but that, it seems to me, is a question to be ultimately determined at the final hearing.  The effect of upholding the present submission for the respondents would be that those respondents who have made affidavits are not proper parties to the proceedings. Yet there is no application to have the proceedings against them summarily dismissed.

Therefore, it seems to me that the question of whether these respondents should be available for cross-examination is one which ought to be left to the judge hearing the matter finally.  It may be, for example, that the course of the cross-examination of the first of these deponents who is called will affect any application which might be renewed by the other respondents that they need not be available for cross-examination.  For the present then, the decision will remain one on which it will be incumbent upon the respondents to make out a case for reliance upon by the affidavit absent the availability of the deponent according to the relevant rule. 

Next there was a question of the oral evidence which the applicant would seek to lead from the fourth and sixth respondents who have not made affidavits.  The applicant in their case can secure their attendance by a subpoena, and to the extent that the testimony which he has in mind is relevant, he can lead evidence from them in his case at the final hearing.  It was pointed out by counsel for the respondents that the person occupying the position of the Commissioner for Children and Young People and Child Guardian was not the person occupying that office at what appear to be relevant times.  Nevertheless, it may be that the applicant can demonstrate some relevance in the evidence of the present sixth respondent by being able to demonstrate that if he is otherwise entitled to succeed, the applicant should have some relief directed to that respondent.  Therefore, the question of the oral testimony of those two respondents, it seems to me, is one which must be determined by the trial judge.  As I have said, the means of procuring the attendance of those persons exists for the employment of the applicant according to the relevant procedural rules. 

Lastly, there was a question of the production of documents.  Pursuant to an order made by the applications judge, the applicant forwarded a document that set out a list of the categories of documents which he sought.  The respondents have said that they will disclose those documents subject, of course, to any valid claim of privilege.  The applicant is yet to see the documents which will be produced, and it’s yet to be seen whether they will satisfy what he sees as his requirements.  It will be directed that the respondents produce to the applicant by posting to him the documents referred to in paragraph 4 of the respondents’ outline of argument filed on 2 December, those documents to be posted by 18 December 2013. 

The allocation of a new trial date should, I think, be made within the supervised case list where this case presently resides.  The applicant told me that there may be an issue about the extent of the production of those documents which will have to be agitated ahead of that hearing date.  The allocation of the hearing date will also be affected obviously by the availability of witnesses. 

Today’s costs will be reserved.

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