Pp Consultants v Finance Sector Union of Aus

[2000] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S236 of 1999

B e t w e e n -

CLAYTON ROBERT CROKER

Applicant

and

COMMISSIONER OF POLICE OF NEW SOUTH WALES

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 MAY 2000, AT 3.29 PM

Copyright in the High Court of Australia

MR C.R. CROKER appeared in person.

MR G.J. BARTLEY:   If the Court pleases, I appear for the respondent.  (instructed by Court and Legal Services, New South Wales Police Service)

GAUDRON J:   Yes, Mr Croker.

MR CROKER:   Your Honours, if it pleases the Court, the application was brought on a subpoena to the New South Wales Police Commission to produce documents that the applicant, myself, was actually involved in with correspondence to the Commissioner of Police.  The application was actually subpoenaed in the Supreme Court and was issued on 2 February 1999.  There was part compliance of the subpoena, section (b) of the subpoena, on page 1 of the application book and page 2 part (B) in the schedule.

GAUDRON J:   Yes.  But the issue is where was the mistake in setting it aside?  You have to establish some forensic purpose for this subpoena.

MR CROKER:   Your Honour, the forensic purpose was that the ongoing nature of the premises was actually that of a disorderly house, then a residential or low-cost lodge-style accommodation that was offered, supposedly, by the defendant in an inferior court.

GAUDRON J:   Well, how did that become relevant?

MR CROKER:   Your Honour, if I can give you a quick history of the case I could explain it - - -

GAUDRON J:   Had you not taken proceedings in the Tenancy Tribunal?

MR CROKER:   There was.

GAUDRON J:   And you had lost proceedings there?

MR CROKER:   I would say there was a loss because the reliability of the defendant was that he portrayed to have an approval or an undertaking with four bodies that were actually given approval to actually entertain a low-cost lodge-style accommodation.

GAUDRON J:   Did the Tenancy Tribunal not decide it had no jurisdiction?

MR CROKER:   They did.

GAUDRON J:   And you then brought proceedings in the Administrative Division of the Supreme Court.

MR CROKER:   That is correct.

GAUDRON J:   Asserting that they did have jurisdiction.

MR CROKER:   Either that or that the - - -

GAUDRON J:   That is all you could assert, was it not?

MR CROKER:   It was the only appeal that was open to me.

GAUDRON J:   Yes.  Well now, on what basis does the Tribunal have jurisdiction?

MR CROKER:   The accommodation is actually a boarding house with the approval of government and also taxation - Department of Taxation.

GAUDRON J:   Is a boarding house?

MR CROKER:   That is correct.

GAUDRON J:   And so you wanted to prove it was a boarding house?

MR CROKER:   I did not.  I intended to prove that it was only share accommodation with the subpoenaed documents from the Taxation Department.

GAUDRON J:   Well how then do the documents you have subpoenaed relate to the issue whether it was a boarding house or shared accommodation?

MR CROKER:   In view of the documents that could have been supplied would indicate that the premises over the last 12 months have been used or in the process of being used as a disorderly house and not that of either.

GAUDRON J:   Well, that does not seem to me to have any relevance to the matter that was before the Supreme Court.

MR CROKER:   Your Honour, if I can narrow the matter down to saying that the use of the premises were illegal in any sense for accommodation as the subpoenaed documents from the Sydney City Council indicated, that the premises were actually - or the defendant in an inferior court actually applied for approval for the running of a low-cost lodge-style accommodation and - - -

GAUDRON J:   The only issue before the Supreme Court on your application was whether or not the Tenancy Tribunal had jurisdiction and that, in turn, depended on whether it was a boarding house, you say, or shared accommodation?

MR CROKER:   That is correct. 

GAUDRON J:   To prove it was a disorderly house or used for illegal purposes may prove that it is not a boarding house and not shared accommodation, but that does not advance your claim because you wish to say it is one or the other.

MR CROKER:   I dispute that the premises were used for a purpose that is legal in that the jurisdiction by the Sydney City Council was denied.  The Taxation Department records that I have witnessed seem to show no indication that an inferior court has any jurisdiction by the Taxation Department either.  The object of this appeal was that subpoenaed documents or the four subpoenaed documents that went out were returned by three of them - Sydney County Council, St Vincent's Hospital, which the defendant in an inferior court claimed approval, and also to be in some sort of harmony with, and also the one from the police department or section (B) of the schedule and the police subpoena.

If I can bring your attention to that at the moment.  The schedule has A and B parts to it.  The request was that police records show in attendance at the premises of 33 Cooper Street, Surry Hills, Sydney, 2010, over the last 12 months.  Return of the subpoena that was received with Part B applied with indicated the police attended to the premises on several occasions and that they were frequently - or have been there on a frequently - number of times.  I, myself, called the police there on two occasions but in section A of the subpoena I did not delineate that I required that information.  The way - maybe articulation of the interpretation of the section might give rise to that was the document I was interested in.  At that stage there were four detectives called from Surry Hills Police Station to attend the premises as the drug use was getting abusive in the place and also that of syringes and pills and straps left in the premises in the bathrooms was getting quite disturbing and attempts of break-in, et cetera, would be in that category.

The police, at one stage, did offer the document to me and actually advised me that it was at the subpoena section of the Supreme Court and on attendance there, there was no document there at all, except their compliance with section (B).  Section (C) of the subpoena is asking for, “Police records showing any indications of a disorderly house at the premises of 33 Cooper Street, Surry Hills, 2010, over the last twelve months.”  The police were again informed by myself when I awoke one night - 2 o'clock in the morning - there is a young gentleman climbing in the window of the premises stating the fact that all he wanted to do was talk to me.  Eventually, when I got him out the place - he had five of his friends sleeping in the next room which was vacant at the time - and I attended the police station to say the place was being used with no guardians at all to the premises or the occupants.  Their refusal to help was unfortunate but apparently in situations like that they had no jurisdiction.  I claimed that house was under no control at all and was frequently disturbed by drug addicts, people under the influence of alcohol, which was quite disturbing underneath the amount of time that I had residence there, only about 10 weeks.

I could also say now that there has been an application put forward to the Police Prosecution in the Supreme Court that the defendant actually committed the offence of perjury on approximately 20 occasions.  Therefore, I actually lost the case in the Supreme Court and is now in the hands of the Police Prosecutor.  I am waiting for a reply off them.  Also, the four offences against the Trade Practices Act have been advised the Attorney‑General in Canberra for advice on prosecution in the Federal Court. 

I look at this application, as if there is failure in any of them errors, as a second resort to take up my own prosecution in the Supreme Court and apply the documents that are in the hands of the Commissioner of Police of New South Wales are not documents which have privilege and that the public importance of the outcome would be that there is no statute barring of the documents to come out.  The Commissioner of Police has only used a common law to prevent the appearance of the documents.

I can see no reason the documents to have any indication of people's names, places, et cetera, which are irrelevant to be blacked out.  I only seek the information that is indicating the request.

There was part compliance, there was a notice of motion filed.  I can only reiterate that the Commissioner did indicate that the subpoena at one stage had actually been completed with - complied with and, again, to my disappointment, it was not.

Your Honours, I also look at indicating there the Freedom of Information Act and also the Evidence Acts that compels documents which are relevant in hearings.

GAUDRON J:   Yes.  Well, the only question that we can entertain is whether or not the Court of Appeal was correct to refuse leave to appeal in the proceeding which you brought in the Administrative Division of the

Supreme Court with respect to the Tenancy Tribunal's decision.  That is the only matter we can be concerned with.

MR CROKER:   Your Honour, the two judgments that were actually brought to the attention of the court were actually the ones.....subpoenaed by Justice Adams and also Justices Sheller and Stein in the Court of Appeal which described the application as a mere fishing expedition.  As they stated, I am not looking for new evidence, I am only looking for evidence that I have already come across myself and already purported to report to the police myself.  I am a party to those documents.

GUMMOW J:   But the Tribunal decided what, that they had no jurisdiction because it was a boarding house, is that right?

MR CROKER:   That is how they found, your Honour.

GUMMOW J:   And you want to show that it is not a boarding house but something else?

MR CROKER:   If anything, an illegal boarding house.

GAUDRON J:   What is it that would give the Tenancy Tribunal jurisdiction that you wish to prove?

MR CROKER:   Share accommodation.  That I believe that the premises were out of control as share accommodation.  It does not seem to have any ruling.  I would say a disorderly house and the Supreme Court would probably have jurisdiction at that stage.

I am relying on a report from the Department of Public Prosecutions on the application for prosecution on the offences of perjury.  With that, it might give light to a reapplication.

GAUDRON J:   Yes.  Well, we are not concerned with the offences of perjury.

MR CROKER:   Your Honours, I can only reiterate what I have asked.

GAUDRON J:   Yes.  Thank you, Mr Croker.  We need not trouble you,

In this matter, the New South Wales Court of Appeal refused leave to appeal from the decision of a judge dismissing a motion which sought to enforce compliance with a subpoena addressed to the respondent.  The respondent is a third party to the litigation in the Supreme Court in respect of which the subpoena was issued.  The application for special leave  involves questions of practice and procedure which, save in exceptional cases, are to be decided in the Supreme Court.  The present case is not in that exceptional category.  Moreover, there is no reason to doubt the correctness of the decision of the New South Wales Court of Appeal.  Accordingly, special leave is refused.

MR BARTLEY:   I apply for costs, if the Court pleases.

GAUDRON J:   You cannot resist that, can you, Mr Croker?

MR CROKER:   I would just like to say that I have receiving this disability support pension since 1994.  If the parties could bear their own costs.

GAUDRON J:   No.  I think the usual rule is costs follow the event and, accordingly, special leave will be refused with costs.

MR BARTLEY:   May it please the Court.

GAUDRON J:   Court will now adjourn until Tuesday, 2 pm on 30 May in Sydney

AT 3.42 PM THE MATTER WAS CONCLUDED