Rankine v The State of South Australia - [2020] SASC 243

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
RANKINE v THE STATE OF SOUTH AUSTRALIA
[2020] SASC 243
Judgment of The Honourable Justice Stanley
23 December 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - OTHER MATTERS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PROCEDURAL ASPECTS OF EVIDENCE - SUBPOENAS AND NOTICE TO PRODUCE AT HEARING - SETTING ASIDE OR OTHER RELIEF
This is an application for permission to appeal from an interlocutory decision of a magistrate setting aside a subpoena to produce documents directed to the Chief Director of Community Corrections and the Chief Executive of the Department for Correctional Services.
On 9 October 2020 at the request of the appellant the Registry of the Magistrates Court issued a subpoena to provide documents addressed to the Chief Director of Community Corrections and the Chief Executive of the Department for Correctional Services. The subpoena sought all video footage recorded on 8 October 2020 of certain areas of a community corrections office between the hours of 12.45 p.m. and 1.40 p.m. On its face the subpoena required the material to be produced at an interlocutory hearing listed for 5 November 2020. The subpoena was issued without leave of a magistrate.
On 21 October 2020, a magistrate made an order in Chambers setting aside the subpoena issued on 9 October 2020 on the basis it was irregularly obtained. The magistrate noted that, pursuant to UCR r 118.1, a subpoena for an interlocutory hearing may only be issued with the leave of the Court.
The appellant appeals from this decision. The notice of appeal raises a single ground, namely, that the order setting aside the subpoena is prejudicial and oppressive. However, the notice of appeal also asserts that it is customary court protocol to assist self-represented people in amending documents.
Held, dismissing the appeal:
1. The subpoena was irregularly obtained and the appellant had no legal right, in the absence of leave, to insist upon production of the material sought. Accordingly, the magistrate was correct in setting aside the subpoena. This order is not prejudicial or oppressive to the appellant.
2. The fact that a litigant is self-represented does not entitle him or her to being excused from the requirements of substantive or, in this case, procedural law.
Uniform Civil Rules 2020 (SA) rr 12, 118.1, 156.2 , referred to.
Return to Work Corporation of South Australia v Moore-McQuillan [2020] SASCFC 119, discussed.
Duke Group v Arthur Young (1991) 4 ACSR 355; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (No. 2) (1990) 21 NSWLR 200; Morgan v WorkCover Corporation (SA) [2011] SASC 113; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, considered.

RANKINE v THE STATE OF SOUTH AUSTRALIA
[2020] SASC 243
STANLEY J.
Introduction

This is an application for permission to appeal from an interlocutory decision of a magistrate setting aside a subpoena to produce documents directed to the Chief Director of Community Corrections and the Chief Executive of the Department for Correctional Services.
Factual background
On 17 June 2019 the appellant commenced proceedings in the Magistrates Court claiming damages for personal injury from the State of South Australia. The proceedings allege a failure by prison authorities to provide or arrange medical attention for the appellant following an assault by a fellow prisoner at the Yatala Labour Prison on 10 April 2019.
On 9 October 2020 at the request of the appellant the Registry of the Magistrates Court issued a subpoena to provide documents addressed to the Chief Director of Community Corrections and the Chief Executive of the Department for Correctional Services. The subpoena sought all video footage recorded on 8 October 2020 of certain areas of a community corrections office between the hours of 12.45 p.m. and 1.40 p.m. On its face the subpoena required the material to be produced at an interlocutory hearing listed for 5 November 2020. The subpoena was issued without leave of a magistrate.
On 15 October 2020, the appellant filed in the Magistrates Court interlocutory applications seeking, inter alia, an order for the custody or control of evidentiary material pursuant to the Uniform Civil Rules 2020 (SA) (UCR) r 112.11, including for the same video footage sought in the subpoena issued on 9 October 2020. The supporting affidavit deposes, in effect, that the appellant’s legal materials were removed from his backpack by community corrections officers between 8 and 14 October 2020 and photocopied.
On 21 October 2020 the appellant filed a further interlocutory application in the Magistrates Court requesting permission to introduce evidence, namely a USB memory stick containing audio-visual recordings. The supporting affidavit deposes, in very general terms, that the USB memory stick may contain evidence relevant to the subpoena issued on 9 October 2020 and the appellant’s interlocutory applications filed on 15 October 2020.
On 21 October 2020, a magistrate made an order in Chambers setting aside the subpoena issued on 9 October 2020 on the basis it was irregularly obtained. The magistrate noted that, pursuant to UCR r 118.1, a subpoena for an interlocutory hearing may only be issued with the leave of the Court.
On 5 November 2020, the interlocutory hearing proceeded before a different magistrate in respect of a number of other interlocutory issues. The appellant’s interlocutory applications filed on 15 and 21 October 2020 were adjourned for directions on 17 December 2020, together with several other interlocutory issues.
To date, the appellant’s claim has not been listed for trial.
Leave to appeal
The impugned decision of the magistrate to set aside the subpoena was an interlocutory decision. Pursuant to UCR r 213.1(1)(a) an appeal from an interlocutory decision of the Magistrates Court can only be brought by leave. On the hearing of this matter the appellant sought leave to appeal. Leave to appeal from an interlocutory decision should only be granted where the Court is satisfied that the decision sought to be impugned is either wrong, or attended with sufficient doubt to warrant its reconsideration on appeal, or has the effect of working a substantial injustice on the applicant.[1]
[1] Duke Group v Arthur Young (1991) 4 ACSR 355; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (No. 2) (1990) 21 NSWLR 200; Morgan v WorkCover Corporation (SA) [2011] SASC 113.
Grounds of appeal are not reasonably arguable
The notice of appeal raises a single ground, namely, that the order setting aside the subpoena is prejudicial and oppressive. However, the notice of appeal also asserts that it is customary court protocol to assist self-represented people in amending documents.
In my view, neither proposition is reasonably arguable.
UCR r 118.1 provides that a subpoena for the purpose of an interlocutory hearing may only be issued with leave of the Court. As the subpoena issued on 9 October 2020 was returnable to an interlocutory hearing and was issued without the leave of a magistrate, the subpoena was irregularly obtained and the appellant had no legal right, in the absence of such leave, to insist upon production of the material sought. Accordingly, the magistrate was correct in setting aside the subpoena.[2]
[2] UCR 156.2(2)(a)(ii).
While the subpoena was set aside by the magistrate without hearing from the appellant, there was no material breach of procedural fairness. A breach is material to a decision only if compliance could realistically have resulted in a different decision.[3] In this case the decision to set aside the subpoena on a basis that it was irregularly obtained was the only decision legally available. The decision is neither wrong or attended with sufficient doubt to warrant its reconsideration on appeal. To the extent that the appellant seeks to characterise the decision to set aside the subpoena as prejudicial and oppressive it is necessary for him to demonstrate that any prejudice or oppression is unlawful. For the reasons explained the decision to set aside the subpoena on the basis it was irregularly obtained in breach of the Rules means that the decision was not unlawful, irrespective of whether it occasions the appellant prejudice or oppression. The order setting aside the subpoena does not work a substantial injustice on the appellant. The setting aside of the subpoena does not prevent the appellant from applying for leave to issue a new subpoena. Further, by the time the magistrate made the impugned order on 21 October 2020, the appellant had already filed an interlocutory application on 15 October 2020 seeking an order under UCR r 112.11 in respect of the same evidentiary material as sought by the subpoena. In effect, the appellant has before the Magistrates Court an extant interlocutory application seeking the same evidentiary material as sought in the subpoena. He is free to pursue that application.
[3] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]-[46], (2019) 264 CLR 421 at 445.
In the circumstances, the order setting aside the subpoena is not prejudicial or oppressive to the appellant.
In addition, I reject the appellant’s submission that it is customary court protocol to assist self-represented people in amending documents.
In Return to Work Corporation of South Australia v Moore-McQuillan,[4] the Full Court considered the duties a court owes to a self-represented litigant. It said:[5]
[4] [2020] SASCFC 119.
[5] [2020] SASCFC 119 at [119]-[121].
The duties of a court before which an unrepresented litigant appears are well known. As Hodgson JA (Ipp JA agreeing) observed in Reisner v Bratt:
[4] Parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has the duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator.
In a more recent case in this State, in the matter of Aldridge v Johnston, Peek J (Hughes J agreeing) said:
[129] … The Courts have long recognised the need to afford assistance to unrepresented litigants to minimise their forensic disadvantages, including by explaining their substantive and procedural rights. The degree of such assistance that needs to be afforded will depend very much on the particular litigant; the mere fact that Aldridge was unrepresented is not enough to amount to unfairness. Impartiality, and the appearance thereof, must be maintained and the interests of the represented party must be balanced against those of the unrepresented party to ensure a fair trial for both parties.
[Footnote omitted]
However, the restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one of the litigants is self-represented. In Malouf v Malouf, Bryson JA added:
[183] Courts should not go so far in accommodating the positions of unrepresented litigants as to make it an advantageous procedural step to dismiss one’s lawyers, or to retain none. Nor should courts slip from unreadiness to shut a party out from litigating an issue which is fairly arguable into incapacity to close off procedural opportunities which are not taken. Without procedure, procedural directions and compliance, justice will not be done at all. The time, patience, resources and willingness to behave appropriately of those who do comply should have a place in consideration of what the Court should do when a party who has not complied with earlier directions seeks an extension of time, or some procedural indulgence by which earlier directions are disregarded. …
[citations omitted]
The appellant had obtained the issue of the subpoena irregularly in breach of the Rules. The defect was not amenable to rectification by amending documents. In this case the appellant, in effect, sought to invoke UCR r 12 which confers power on the Court to dispense with compliance with the Rules. Such an application should have been made in the Magistrates Court, not on an application for leave to appeal to this Court. The fact that a litigant is self-represented does not entitle him or her to being excused from the requirements of substantive or, in this case, procedural law. The fact the appellant is self-represented would not entitle him to an order amending documents if not otherwise justified.
Disposition of the appeal
In the circumstances leave to appeal is refused. The appeal is dismissed.