Robinson v Kew, Kew v The Commissioner for Fair Trading

[2006] NSWSC 453

CITATION:	Robinson v Kew, Kew v The Commissioner for Fair Trading [2006] NSWSC 453
HEARING DATE(S):	10/04/06
JUDGMENT DATE :	7 June 2006
JUDGMENT OF:	James J at 1
CATCHWORDS:	CIVIL LAW - practice and procedure - applications to set aside notices to produce - a document or thing relevant to a fact in issue
LEGISLATION CITED:	Crimes Act Crimes (Local Courts Appeal and Review) Act Criminal Procedure Act Fair Trading Act Uniform Civil Procedure Rules
CASES CITED:	Portal Software v Bodsworth [2005] NSWSC 1115
PARTIES:	Stephen Robinson v Michael Owen Kew, Michael Owen Kew v The Commissioner for Fair Trading
FILE NUMBER(S):	SC 15876/05; 14160/05
COUNSEL:	R Cogswell SC/N Perran - Plaintiff Dr G Flick/S Dewberry - Defendant Dr G Flick/S Dewberry - Plaintiff R Cogswell SC/N Perran - Defendant
SOLICITORS:	Crown Solicitor's Office - Plaintiff Jemmeson & Fisher - Defendant Jemmeson& Fisher - Plaintiff Crown Solicitor's Office - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Wednesday 7 June 2006

14160/05 Michael Owen KEW v THE COMMISSIONER FOR FAIR TRADING & ANOR
15876/05 Stephen ROBINSON v KEW

JUDGMENT

1 HIS HONOUR: These are applications by the Commissioner for Fair Trading and Mr Stephen Robinson, an employee in the Office of Fair Trading, to set aside notices to produce served on the applicants by Michael Owen Kew in proceedings 14160/05 and proceedings 15876/05. In proceedings 14160/05 Mr Kew is the plaintiff and the Commissioner and Mr Robinson are the defendants. In proceedings 15876/05 Mr Robinson is the plaintiff and Mr Kew is the defendant.

2 The only notice to produce included in the evidence adduced at the hearing of the applications was the notice to produce served in proceedings 15876/05. A document annexed to an affidavit sworn in proceedings 14160/05 was (I assume inadvertently) a copy of the notice to produce served in proceedings 15876/05. However, I was informed at the hearing of the applications that the two notices to produce were in identical terms. At times in this judgment it will be convenient to refer to both notices to produce simply as “the notice to produce”.

3 The two proceedings between the parties have a long history and it is necessary to set out this history in some detail, in order to understand and determine the issues which arose on the hearing of the applications.

History of the Proceedings

4 On 24 September 2004 a number of Court Attendance Notices were issued in the Local Court, charging Mr Kew with offences under s 300(1) and s 300 (2) of the Crimes Act. In each court attendance notice the prosecutor was described as “S Robinson Public Officer for and on behalf of the Commissioner for Fair Trading”.

5 On 25 July 2005 the Court Attendance Notices came before a magistrate in a Local Court. Before the magistrate it was submitted on behalf of Mr Kew that neither the Commissioner nor Mr Robinson had power or authority to commence proceedings alleging offences under the Crimes Act. On 27 July 2005 the magistrate made a ruling against this submission. Counsel for Mr Kew informed the magistrate that proceedings would be brought in the Supreme Court challenging the magistrate’s ruling and the proceedings in the Local Court were stood over to enable proceedings in the Supreme Court to be brought.

6 In a judgment given by the magistrate on 16 November 2005 the magistrate commented that the argument before him in July 2005 had proceeded on the basis that Mr Robinson did hold a delegation to prosecute from the Commissioner but it was in issue whether the delegation was valid.

7 On 24 August 2005 Mr Kew as the plaintiff commenced proceedings 14160/05 against the Commissioner and Mr Robinson. The substantive relief claimed in the summons was:-

“1. A declaration that the first defendant has no power or other authority conferred by the Fair Trading Act 1987 (NSW) to commence proceedings or otherwise prosecute offences arising under the Crimes Act 1900 (NSW) and, in particular offences arising under s 300(1) and/or (2) of the Crimes Act 1900 (NSW).
2. A declaration that the first defendant has no power or other authority conferred by the Fair Trading Act 1987 (NSW) to delegate to or to authorise a person to commence proceedings or otherwise prosecute offences for and on behalf of the first defendant being offences arising under the Crimes Act 1900 (NSW) and, in particular, offences arising under s 300(1) and/or (2) of the Crimes Act 1900 (NSW).
3. A declaration that the second defendant has no power or other authority conferred by the Fair Trading Act 1987 (NSW) to commence proceedings or otherwise prosecute offences for and on behalf of the first defendant, being offences arising under the Crimes Act 1900 (NSW) and, in particular, offences arising under s 300(1) and/or (2) of the Crimes Act 1900 (NSW).
4. A declaration that section 9(1)(c) of the Fair Trading Act does not allow a prosecution by the first defendant for alleged offences under the Crimes Act 1900.
5. A declaration that the second defendant has no power or other authority as a ‘ Public Officer, for and on behalf of the Commissioner for Fair Trading ’ to prosecute the plaintiff in the Local Court of New South Wales for offences allegedly committed contrary to s 300(1) and/or (2) of the Crimes Act 1900”.

8 On 21 October 2005 Mr Kew’s legal representatives served a notice to produce on the Crown Solicitor who was acting for the defendants, requiring the production of any delegation from the Commissioner to Mr Robinson authorising Mr Robinson to commence criminal proceedings.

9 On 25 October 2005 the Crown solicitor’s office faxed a letter to Mr Kew’s solicitors, stating that the response to the notice to produce would be “not produced”. The letter stated “I am instructed by my client that there was no valid delegation to Mr Stephen Robinson”.

10 Proceedings 14160/05 came before Grove J of this Court on 26 October 2005. It is necessary to refer in some detail to the transcript of the hearing before Grove J on 26 October.

11 Counsel for Mr Kew informed Grove J that it was submitted that the Commissioner had no power to prosecute offences under the Crimes Act and no power to authorise anyone else to prosecute offences under the Crimes Act.

12 At page 2 lines 5-13 of the transcript counsel for Mr Kew, after referring to the summons, said:-

“The defendants are going to consent to declarations (3) and (5), for the reason that we have served upon them, and I will call upon it in a moment, a notice to produce asking for the delegation to the second defendant to be produced. The answer to that will be ‘Not produced’. They cannot find any such delegation and in such circumstances it is common ground the plaintiff is at least entitled to the declarations in (3) and (5)…”

13 Counsel for Mr Kew then raised the question of whether Grove J should proceed to hear argument about the other claims for relief in the summons.

14 As to whether Grove J should proceed to hear argument about the other claims for relief in the summons, counsel for Mr Kew said at transcript page 2 lines 22-35:-

“… one view would be that making declarations (3) and (5) brings to an end the Local Court proceedings as they are presently constituted. It will of course be the case that when the matter is mentioned next before the magistrate – I think it is tomorrow – and he has been kept informed as to what has happened here – an application may well then be made to amend the Information to delete, for example, the reference to Mr Robinson and to leave the Commissioner as the informant. That application to amend may or may not be granted.
The application could be to delete the Commissioner and make it Mr Robinson as a private individual; that application may or may not be granted…”

15 At page 3 of the transcript counsel for Mr Kew formally called on the notice to produce seeking the delegation to the second defendant and the transcript then records “(not produced)”. Counsel for the defendants confirmed that there was no opposition to declarations being made in accordance with pars (3) and (5) of the summons.

16 At page 4 lines 1-7 of the transcript counsel for the defendants said”-

“It is my client’s intention to apply to amend the current process to effectively substitute the Commissioner for the present prosecutor who is Mr Robinson on behalf of the Commissioner, the way he has expressed ‘for and on behalf of the Commissioner’, so the application will be to delete the words and to leave it as the Commissioner for Fair Trading”.

17 There was further discussion about whether Grove J should hear the balance of the summons. His Honour expressed some reluctance to hear the balance of the summons, before knowing what might happen in the Local Court the following day. However, just before taking a short adjournment, his Honour said:-

“Despite all that I have said, I gather both parties are anxious to proceed. We might as well get on with it… we will go on and hear the matter in relation to the other three prayers”. (transcript page 6 lines 42-44).

18 However, when the Court resumed after the short adjournment, counsel for Mr Kew said:-

“My instructions are as follows: that the preferred course that it wishes your Honour to adopt to-day is to grant declarations (3) and (5), to make an order for costs and to stand the balance of the summons over to an appropriate date”. (transcript page 6 lines 50-54).

19 At page 7 lines 17-20 of the transcript counsel for Mr Kew said:-

“If he (the magistrate) dealt with the application tomorrow and refused it, the matter perhaps goes away; if he grants it, then we could come back before your Honour one day next week to fix a date”.

20 Counsel for the defendants said at transcript page 7 lines 41-45:-

“Our position remains the same. We urge your Honour to proceed for the reasons indicated before. If your Honour is not minded to do that we would urge your Honour to stand it over to Friday before your Honour in the hope the magistrate might resolve it tomorrow…”

21 Grove J refused an application for costs made by counsel for Mr Kew and then said:-

“I note that in answer to the call for material in relation to delegation from the Commissioner to the second defendant nothing was produced. The plaintiff moves for declarations in accordance with declarations (3) and (5) of the current summons. The motion for those declarations is not opposed. Accordingly I make declarations in accordance with paragraphs (3) and (5) of the summons. I stand over the balance of the summons for mention before me at 10am on Friday next, 28 October 2005. Any questions of costs I will reserve”.

22 On 27 October 2005 an application was made in the Local Court on behalf of the prosecution to amend the Court Attendance Notices, not by deleting the words “S Robinson Public Officer for and on behalf of” so that the prosecutor would be “The Commissioner for Fair Trading” (which was the amendment foreshadowed by counsel for the Commissioner and Mr Robinson before Grove J on 26 October), but to delete the words “S Robinson Public Officer for and on behalf of the Commissioner for Fair Trading” and to substitute as the prosecutor “Christopher Pacey Manager of Prosecutions and General Litigation”. This application to amend the Court Attendance Notices was refused.

23 On 28 October 2005 proceedings 14160/05 came back before Grove J. On 28 October Grove J delivered the following judgment:-

“1 HIS HONOUR: Having regard to the exchange with counsel, I shall only briefly refer to the reasons for the orders I am about to make.

2 These proceedings were before the Court two days ago and, by consent, declarations were made in accordance with paragraphs 3 and 5 of the current summons. The question of costs was reserved.

3 The reason for the adjournment until today was to enable the Court to be informed as to the progress of the matter which is currently before the magistrate at the Local Court at Parramatta. It is common ground that yesterday an application was made to substitute another delegate of the Commissioner for Fair Trading as the institutor, if I can use that word, of proceedings which are reflected in the issue of Court Attendance Notices against the plaintiff before this Court. The magistrate's decision to refuse the application was handed down, I am told, shortly before 4pm yesterday afternoon.

4 The defendants wish to consider their position. As I indicated to counsel, however, it seems to me that whilst the balance of prayers in the summons perceptibly have a hypothetical element, it seems to me to be contrary to the interests of the Court and the parties to allow it to be further complicated.

5 The course which I have proposed, and that I raised with counsel is, having made the declarations in accordance with paragraphs 3 and 5, to strike out the balance of the summons, noting that this is done without prejudice to the plaintiff to raise those matters in any further proceedings. That is not the subject of contention on behalf of the defendants. Neither have I heard any submissions on behalf of the defendants against my disclosed provisional view, that the defendants should pay the plaintiff's costs of this summons.

6 Application is made on behalf of the plaintiff that those costs should be ordered on an indemnity basis and should include the costs of the proceedings before the magistrate. As I have indicated, the proceedings before the magistrate are essentially part heard and, in any event, I see no reason why I should intervene in relation to the costs relative to them. Neither do I see any reason for the imposition upon the defendants of indemnity costs, although I am of the view that they should pay the costs of the summons.

7 Accordingly, repeating the indication that the orders I am about to make are without prejudice to the ability of the plaintiff to raise similar matters in any further proceedings, the balance of the summons which has been adjourned is struck out. I order the defendants to pay the plaintiff's costs of the summons in this Court”.

24 I note from Grove J’s judgment that his Honour had been made aware that the application to amend the Court Attendance Notices which had been made to the Local Court the previous day was, not to substitute the Commissioner himself as the prosecutor but to substitute another delegate of the Commissioner; that his Honour did not express any concern or displeasure that the application which had been made to the Local Court was not the application which counsel for the defendants had on 26 October indicated would be made; that the defendants wished further time in which to consider their position; but that, notwithstanding the defendants’ wishes, his Honour decided to strike out the balance of the summons, without prejudice to the right of Mr Kew to raise those matters in further proceedings; that while his Honour considered that the defendants should pay the plaintiff’s costs of the summons in the Supreme Court, such order for costs should not be on an indemnity basis; and that his Honour regarded the proceedings in the Local Court as “part-heard”.

25 Nothing was said to Grove J on 28 October about any further application to amend the Court Attendance Notices.

26 On 2 November 2005 the orders made by Grove J on 26 October and 28 October were formally entered.

27 On 1 November 2005 an application was made in the Local Court to amend the Court Attendance Notices by deleting from the description of the prosecutor the words “for and on behalf of the Commissioner for Fair Trading”, so that the prosecutor would be “S Robinson Public Officer”. On 16 November 2005 the magistrate refused this further application to amend the Court Attendance Notices. After refusing this further application to amend, the magistrate marked the papers in the Local Court proceedings “no jurisdiction”.

28 On 14 December 2005 proceedings 15876/05 were commenced in this Court. In these proceedings the plaintiff Mr Robinson claims orders pursuant to the Crimes (Local Courts Appeal and Review) Act or, alternatively, orders of a prerogative kind. In substance the plaintiff claims orders:-

1. Setting aside the order of the Local Court magistrate of 16 November 2005 in effect dismissing the criminal proceedings against Mr Kew by marking the papers “no jurisdiction”.

2. An order granting leave to appeal against the interlocutory order of the Local Court magistrate made on 1 November 2005 refusing the application to amend the Court Attendance Notices by deleting from the description of the prosecutor the words “for and on behalf of the Commissioner for Fair Trading”.

3. An order setting aside the order of the Local Court Magistrate made on 1 November 2005 refusing the application to amend the Court Attendance Notices.

29 On 2 February 2006 a Registrar of the Court gave directions about the future conduct of proceedings 15876/05.

30 On 10 February 2006 an affidavit by a solicitor in the office of the Crown Solicitor was filed. Annexures to this affidavit were:-

A. A delegation by the Director-General of the Department of Fair Trading of his functions under any Act or Regulations referred to in s 8 of the Fair Trading Act relating to commencing or authorising the commencement of legal proceedings. The delegation was to officers including the “Manager, Prosecutions & General Litigation (but only in respect of prosecutions in the Local Court)”.

B. A memorandum dated 24 October 2005 from Mr Davidson, an officer in the Office of Fair Trading, to a solicitor in the Crown Solicitors Office, attaching internal memoranda within the Office of Fair Trading dated 5 August 2004 and 24 August 2004 of which Mr Davidson was the author.

In the memorandum of 5 August 2004 Mr Davidson summarised the investigation which had been conducted by the Office of Fair Trading concerning Mr Kew and recommended that Court Attendance Notices under ss 178BA and 178BB of the Crimes Act be issued to Mr Kew. Mr Pacey as “Manager, Prosecutions & General Litigation” wrote a note on the memorandum “prosecution action supported”.

In the memorandum of 25 August 2004 Mr Davidson said that, after discussion with Mr Robinson described as “the investigator” and Mr Sebastian Mignacca, he recommended that Court Attendance Notices be issued under s 300(1) and s 300(2) of the Crimes Act . A paragraph on the second page of this memorandum reads:-

“Section 300 applies to the making of a false instrument and to its use to cause detriment to another. The preparation of 12 matters under subsections (1) and (2) would reflect this conduct. The penalty is also twice that for sections 178BA and 178BB. Section 300 is not in either in table 1 or table 2 in Schedule 1 to the Criminal Procedure Act 1986 and so cannot be dealt with summarily. It will be instructive for the fair trading administration to see the reactions of the Director of Public Prosecutions and of the District Court to proceeding in this way”.


Mr Pacey as “Manager, Prosecutions & General Litigation” wrote on the memorandum “supported CLP 25/8/04”.

C. A certificate of appointment of Mr Robinson as an investigator for the purposes of the Fair Trading Act .

D. A statement by Mr Pacey, Manager, Prosecutions & General Litigation. Omitting the first, formal, paragraph of the statement, the statement was in the following terms:-

“I am aware that Office of Fair Trading investigator Stephen Robinson investigated the conduct of Michael Owen Kew in relation to the misappropriation of a number of rental bonds when employed in a real estate agency business.
On 25 August 2004 I saw a copy of the draft Court Attendance Notices (“CANS”) prepared in relation to Michael Owen Kew. Those CANS described the prosecutor as “S Robinson, public officer, for and on behalf of the Commissioner for Fair Trading.

I knew that Mr Robinson did not possess a delegation from the Commissioner. I hold a delegation from the Commissioner. Annexed and marked “A” is a copy of the delegation.
As a delegate of the Commissioner, I authorised and approved the CANS to be issued by Mr Robinson. I understood the words ‘public officer, for and on behalf of the Commissioner’ to mean that Mr Robinson was instituting the CANS in his capacity as a public officer working as an employee of the Officer of Fair Trading”.

31 The delegation to Mr Pacey said to be annexed to Mr Pacey’s statement was not in fact annexed in the document filed in this Court. However, according to an affidavit sworn by Mr Kew’s solicitor on 10 March 2006, Mr Pacey’s delegation was limited to Local Court matters and specifically excluded matters that in Mr Pacey’s opinion were “of special importance”, “possess special features” or are “of importance which should be submitted to a more senior officer”.

32 On 24 February 2006 the notices to produce which are the subject of these applications were received by the Crown Solicitor. The descriptions of the documents which the notices to produce require the Commissioner for Fair Trading and Mr Robinson to produce contain twenty-four paragraphs and occupy most of five closely printed pages. The descriptions of the documents are as follows:-

“1. You must produce all correspondence and records of conversations and written or electronic communications between the Minister for Commerce and/or the Commissioner for Fair Trading and/or any officer of the Office of Fair Trading and any other person (whether such other person is an officer of the Office of Fair Trading or not) concerning or touching upon commencing, authorising commencement of, or intervening in legal proceedings against/involving the Defendant.
Specifically and without limiting the generality of the foregoing you must produce the following:-
2. All notes, memoranda, advices, correspondence, file notes, diary notes, records of conversation, emails or facsimiles between Christopher Pacey and/or Stephen Robinson and/or Sebastian Mignacca and/or John Davidson and any other person regarding or touching upon commencing proceedings or authorising the commencement of proceedings against the Defendant whether by way of Court Attendance Notices or otherwise (as well as all other such record of communication relating to the Defendant generally) prior to 25 August 2004.
3. All notes, memoranda, advices, correspondence, file notes, diary notes, records of conversation, emails, or facsimiles from 26 August 2004 to 25 July 2005, including but not limited to advice from or communication with/from Counsel engaged by the Office of Fair Trading and/or Police Officer(s) and/or Crown Solicitors Office and/or the office of Director of Public Prosecutions to/with Christopher Pacey and/or Stephen Robinson and/or Sebastian Mignacca and/or John Davidson and/or any other officer of the Office of Fair Trading in relation to the Defendant or any proceedings against or otherwise involving the Defendant.
4. All notes, memoranda, advices, correspondence, file notes, diary notes, records of conversation, emails, or facsimiles from 26 July 2005 to 30 August 2005, including but not limited to advice from or communication with/from Counsel engaged by the Office of Fair Trading and/or Police Officer(s) and/or Crown Solicitors Office and/or the office of Director of Public Prosecutions to/with Christopher Pacey and/or Stephen Robinson and/or Sebastian Mignacca and/or John Davidson and/or any other officer of the Office of Fair Trading in relation to the Defendant or any proceedings against or otherwise involving the Defendant.
5. All notes, memoranda, advices, correspondence, file notes, diary notes, records of conversation, emails, or facsimiles from 31 August 2005 to 21 October 2005, including but not limited to advice from or communication with/from Counsel engaged by the Office of Fair Trading and/or Police Officer(s) and/or Crown Solicitors Office and/or the office of Director of Public Prosecutions to/with Christopher Pacey and/or Stephen Robinson and/or Sebastian Mignacca and/or John Davidson and/or any other officer of the Office of Fair Trading in relation to the Defendant or any proceedings against or otherwise involving the Defendant.
6. All notes, memoranda, advices, correspondence, file notes, diary notes, records of conversation, emails, or facsimiles from 22 October 2005 to 26 October 2005, including but not limited to advice from or communication with/from Counsel engaged by the Office of Fair Trading and/or Police Officer(s) and/or Crown Solicitors Office and/or the office of Director of Public Prosecutions to/with Christopher Pacey and/or Stephen Robinson and/or Sebastian Mignacca and/or John Davidson and/or any other officer of the Office of Fair Trading in relation to the Defendant or any proceedings against or otherwise involving the Defendant.
7. All notes, memoranda, advices, correspondence, file notes, diary notes, records of conversation, emails, or facsimiles from 26 October 2005 to 27 October 2005, including but not limited to advice from or communication with/from Counsel engaged by the Office of Fair Trading and/or Police Officer(s) and/or Crown Solicitors Office and/or the office of Director of Public Prosecutions to/with Christopher Pacey and/or Stephen Robinson and/or Sebastian Mignacca and/or John Davidson and/or any other officer of the Office of Fair Trading in relation to the Defendant or any proceedings against or otherwise involving the Defendant.
8. All notes, memoranda, advices, correspondence, file notes, diary notes, records of conversation, emails, or facsimiles from 27 October 2005 to 28 October 2005, including but not limited to advice from or communication with/from Counsel engaged by the Office of Fair Trading and/or Police Officer(s) and/or Crown Solicitors Office and/or the office of Director of Public Prosecutions to/with Christopher Pacey and/or Stephen Robinson and/or Sebastian Mignacca and/or John Davidson and/or any other officer of the Office of Fair Trading in relation to the Defendant or any proceedings against or otherwise involving the Defendant.
9. All notes, memoranda, advices, correspondence, file notes, diary notes, records of conversation, emails, or facsimiles from 29 October 2005 to 16 November 2005, including but not limited to advice from or communication with/from Counsel engaged by the Office of Fair Trading and/or Police Officer(s) and/or Crown Solicitors Office and/or the office of Director of Public Prosecutions to/with Christopher Pacey and/or Stephen Robinson and/or Sebastian Mignacca and/or John Davidson and/or any other officer of the Office of Fair Trading in relation to the Defendant or any proceedings against or otherwise involving the Defendant.


10. All notes, memoranda, advices, correspondence, file notes, diary notes, records of conversation, emails, or facsimiles from 17 November 2005 to date, including but not limited to advice from or communication with/from Counsel engaged by the Office of Fair Trading and/or Police Officer(s) and/or Crown Solicitors Office and/or the office of Director of Public Prosecutions to/with Christopher Pacey and/or Stephen Robinson and/or Sebastian Mignacca and/or John Davidson and/or any other officer of the Office of Fair Trading in relation to the Defendant or any proceedings against or otherwise involving the Defendant.
Further and again without limiting the generality of the foregoing, you are specifically required to produce the following documents:
11. Any document recording or referring to any policy statement or the circumstances in which Crimes Act 1900 offences should or might be prosecuted by the Office of Fair Trading.
12. A copy of the prosecution policy and/or guidelines adopted by the Office of Fair Trading.
13. Any document, memorandum, file note, correspondence whether in electronic form or written containing or referring to any consideration of the prosecution policy/guidelines and which of same were taken into account prior to commencing proceedings against Michael Kew.
14. Any document, record, memorandum, file correspondence whether electronic or written that records or refers to whether or not prosecutions under the Crimes Act 1900 should be brought by the Office of Fair Trading.
15. Any advice, communication, record, email, facsimile or written record concerning any previous consideration of and/or any application of the prosecution policy/guidelines of the Office of Fair Trading to the prosecution of Crimes Act 1900 offences.
16. The investigation file relating to the defendant including but not limited to notes, submissions, written records, file notes, memoranda, and electronic communications.
17. The practising certificate of Christopher Pacey.
18. The practising certificate of John Davidson.
19. A copy of any authority expressly issued to Stephen Robinson by Christopher Pacey purporting to authorise any prosecution of Crimes Act 1900 matters whether involving the defendant or some other person or entity.
20. A copy of any authority expressly issued to any other officer of the Office of Fair Trading by Christopher Pacey purporting to authorise any prosecution of Crimes Act 1900 matter whether involving the defendant or some other person or entity.
21. Any submission or request or document or other communication from Stephen Robinson or any other officer of the Office of Fair Trading to Christopher Pacey or any other officer of the Office of Fair Trading seeking authority to commence proceedings pursuant to the Crimes Act 1900.
22. A copy of any authority or any document referring to such authority issued by Christopher Pacey to Stephen Robinson or any other officer of the Office of Fair Trading to commence proceedings pursuant to the Crimes Act 1900.
23. Any submission or request or document or other communication from Christopher Pacey to the Commissioner for Fair Trading or any other officer of the Office of Fair Trading requesting or seeking authority top increase, decrease, alter or sub delegate Christopher Pacey’s delegated authority to commence, authorise the commencement of or intervene in any legal proceedings.
24. You must produce any records, documents, file notes, memoranda, advices or correspondence whether in electronic form or otherwise since 1 January 1996 that relate to or touch upon any of the following:
a. Any prosecutions commenced by the Office of Fair Trading for offences pursuant to the Crimes Act 1900.
b. Any document recording any delegation to any officer of the Office of Fair Trading to commence, authorise the commencement of, or intervene in legal proceedings pursuant to the Crimes Act 1900.
c. Any delegation or any other authority to any officer of the Office of Fair Trading to commence any prosecution pursuant to the Crimes Act 1900.
d. The name and position of any Officer of the Office of Fair Trading delegated or otherwise authorised to commence proceedings pursuant to the Crimes Act 1900”.

33 After the notices to produce were served, letters were exchanged between the solicitors for the parties, in which the Crown Solicitor submitted, and Mr Kew’s solicitors’ disputed, that the documents required to be produced were not relevant to any issue, that the volume and nature of the documents required to be produced made the notices oppressive and that many of the documents required to be produced would be protected by legal professional privilege.

34 On 10 March 2006 a notice of motion entitled in proceedings 14160/05 was issued on behalf of Mr Kew. The relief claimed in the first two paragraphs of the notice of motion is as follows:-

“1. Order no. 1 as made on 2 November 2005 be set aside.
2. Declarations as set forth in paragraphs 3 and 5 of the Summons as filed on 5 September 2005”.

35 The relief claimed in the first paragraph is, apparently, an order that the order made by Grove J on 28 October 2005 and entered on 2 November 2005, that the balance of the summons (that is the summons apart from paragraphs 3 and 5) be struck out, be set aside.

36 The relief claimed in the second paragraph of the notice of motion is that declarations be made as claimed in paragraphs 3 and 5 of the summons filed on 24 August 2005 (5 September 2005 was the return date of the summons, not the date on which it was filed).

37 Other relief claimed in the notice of motion is leave to amend the summons to claim permanent injunctions restraining the Commissioner for Fair Trading and Mr Robinson from prosecuting offences under the Crimes Act and an order that there be a permanent stay of proceedings 15876/05.

38 On 10 March 2006 a notice of motion was also filed in proceedings 15876/05. In this notice of motion Mr Kew claimed procedural orders, including that the two sets of proceedings be consolidated or at least heard together and an order that proceedings 15876/05 be permanently stayed.

39 The two notices of motion were supported by an affidavit by Mr Kew’s solicitor. In his affidavit the solicitor made many references to what had happened in the prosecution of Mr Kew and in the proceedings in this Court, almost all of which I have already summarised.

40 An affidavit was filed by Mr Wilson, who is the Director Compliance and Standards Division of the Office of Fair Trading. In this affidavit Mr Wilson said that objection was taken to producing the documents which would be caught by the notices to produce, on the grounds of lack of demonstrated relevance and of oppression. In par 6 of his affidavit Mr Wilson said:-

“6. My estimate of the total time for retrieval and identification of the documents, and consideration of whether any information in those documents should be subject to a claim of legal professional privilege is approximately two (2) to three (3) months for one person (assuming that person worked exclusively on retrieving and identifying the documents, which is not a realistic assumption)”.

Uniform Civil Procedure Rules and Principles to be applied

41 Before turning to the submissions of counsel for the parties, it is convenient to refer to the relevant provisions of the Uniform Civil Procedure Rules and to some principles.

42 Part 21 r 21.9 of the Uniform Civil Procedure Rules provides in part as follows:-

“(2) For the purposes of this Division, a document or thing is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or thing would be admissible in evidence”.

43 Part 21 r 21.10 provides in part as follows:-

“(1) Party A may, by notice served on party B, require party B to produce for inspection by party A:
(a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and
(b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue”.

44 Part 21 r 21.11 provides in part as follows:-

“(1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce:
(a) produce for party A’s inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B’s possession, and
(b) serve on party A, in respect of any document that is not produced, a notice stating:
(i) that the document is a privileged document, or
(ii) that the document is, to the best of party B’s knowledge, information and belief, in the possession of a person identified in the notice, or
(iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document”.

45 I was referred by counsel for the Commissioner and Mr Robinson to the judgment of Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115, which is also referred to in the commentary in Ritchies Uniform Civil Procedure NSW at par 21.10.25. I am satisfied that the principles stated by his Honour which I am about to state myself are established by the authorities referred to by his Honour.

46 Although a notice to produce is not a subpoena, the obligations which a notice to produce imposes are similar to those imposed by a subpoena for production and the considerations which apply to setting aside a subpoena for production are applicable to notices to produce (Portal Software at 10).

47 Two bases for setting aside a subpoena for production (or a notice to produce), each of which is sufficient, are lack of apparent relevance of the documents required to be produced to any fact in issue in the proceedings (Portal Sofware at 20, 22) and oppressiveness, that is that complying with the subpoena (or notice to produce) would be seriously and unfairly burdensome (par 22).

48 At least as regards oppressiveness, there will often be a need to balance the potential utility of the documents sought against the burden which compliance with the subpoena (or notice to produce) would impose on the recipient (Portal Software at 27).

49 At pars 28 and 29 of his judgment in Portal Software Brereton J said:-

“28 The fact that an application to set aside a subpoena amounts to an assertion of an abuse of process suggests that ordinarily some onus would lie on the person contending that there is such an abuse of process to make that allegation good.

29 However, where the relevance of the documents sought by subpoena is raised at the first stage, the party issuing the subpoena bears at least a forensic onus of showing the relevance of the documents sought to issues in the proceedings. In Santos Limited v Pipelines Authority of Australia (1996) 66 SASR 388, Debelle J, with whom Cox and Prior JJ agreed, stated that "a party seeking to uphold the issue of a subpoena to produce documents must prove that the documents have an apparent relevance to the issues in the arbitration." In Hatton v The Attorney-General (2000) 158 FLR 31 , the Full Court of the Family Court held that a primary judge had not erred in requiring the party who had issued a subpoena to demonstrate the apparent relevance of the documents sought to the issues. The rationale of this approach is that a non-party will not know what the issues are, so as to be able to demonstrate irrelevance”.

50 In Ritchie it is stated at par 21.10.15 that “the intent underlying r 21.10 is that parties are not to be subjected to any kind of general discovery obligation unless an express order for discovery is made by the Court”.

Submissions of the Parties

51 Because of what Brereton J in Portal Software described as the “forensic onus” resting on the party giving a notice to produce of showing the relevance of the documents sought to some fact in issue in the proceedings, it is convenient to refer firstly to counsel for Mr Kew’s submissions.

52 It was not submitted by counsel for Mr Kew that any of the documents sought fell within par (a) of Pt 21 r 21.10(1)(a).

53 Nor was it submitted that any of the documents sought were relevant to any facts in issue under any of the claims for relief in proceedings 15876/05, for example the claim that the Local Court magistrate had erred in law in refusing to amend the Court Attendance Notices in accordance with the application to amend made on 1 November 2005.

54 Nor was it submitted that any of the documents sought were relevant to any facts which would have been in issue under any of the claims for relief in proceedings 14160/05, for example the claim that the Commissioner for Fair Trading himself had no authority to commence proceedings for offences under the Crimes Act and had no authority to authorise anyone else to commence such proceedings.

55 What was submitted by counsel for Mr Kew was that the documents sought were relevant to facts in issue under the claims for relief in the two notices of motion of 10 March 2006.

56 The first claim for relief in the notice of motion in proceedings 14160/05 was for an order setting aside the order made by Grove J on 28 October 2005, striking out the balance of the summons in the proceedings (that is, the summons apart from pars 3 and 5). A difficulty in the way of this claim succeeding was that the orders made by Grove J on 28 October 2005 (and 26 October 2005) had been entered on 2 November 2005.

57 It was submitted by counsel for Mr Kew that, even if an order has been entered, it can be set aside pursuant to Pt 36.36.15 of the Uniform Civil Procedure Rules, if the order was made, “irregularly, illegally or against good faith”. Even apart from this rule a court, or at least a superior court, has an inherent power to set aside an order, if the making of the order involved an abuse of process. It was submitted that a number of abuses of process had occurred before Grove J.

58 It was contended that abuses of process had occurred in that:-

(i) Grove J was told on 26 October 2005 that the answer to the call on the notice to produce of 21 October 2005 was “not produced”. It was submitted that the answer “not produced”, in response to a call on a notice to produce, means that the document called for exists but cannot presently be found. Grove J was not told that there never had been such a document.

(ii) On 26 October 2005 Grove J was told that an application would be made to amend the Court Attendance Notices by deleting the words “S Robinson Public Officer for and on behalf of” in the description of the prosecutor. However, no such application was made.

(iii) On 27 October 2005 a different application was made to amend the Court Attendance Notices, of which Grove J had not been told, by substituting “Christopher Pacey Manager of Prosecutions & General Litigation” as the prosecutor.

(iv) On 28 October 2005 Grove J, allegedly, was told that the only remaining issue in the Local Court was costs and his Honour was not told that a further application would be made in the Local Court to amend the description of the prosecutor in the Court Attendance Notices. It was submitted that, if Grove J had been told on 28 October that it was not true that the only remaining issue in the Local Court was costs and that another application would be made in the Local Court to amend the Court Attendance Notices, his Honour would not, on 28 October, have struck out the balance of the summons.

59 In the notice of motion in proceedings 15876/05 there is a claim for an order that those proceedings be permanently stayed. It was submitted that those proceedings should be permanently stayed, on the grounds that an abuse of process had occurred in the institution of the criminal proceedings in the Local Court. Mr Robinson had instituted the proceedings as prosecutor, even though he had no authority to commence any proceedings under any delegation and Mr Pacey as a person who had supported the institution of the proceedings knew that Mr Robinson had no such authority.

60 It was submitted by counsel for the Commissioner and Mr Robinson that the notices to produce should be set aside on the grounds of lack of relevance to any fact in issue and oppressiveness.

61 As to the alleged abuses of process before Grove J, it was submitted that there were transcripts of the hearings before Grove J and no issue about what his Honour had been told. Likewise, as to the alleged abuse of process in the institution of the criminal proceedings, there were transcripts of the proceedings in the Local Court and no issue about what the Commissioner or Mr Robinson had said or done. There was no issue about Mr Robinson’s lack of authority and Mr Pacey’s knowledge of Mr Robinson’s lack of authority. In these circumstances the documents sought were not relevant to any facts in issue.

Decision

62 It is not part of my function in the determination of these applications to make any decision on whether the order made by Grove J on 28 October 2005 and entered on 2 November 2005 should be set aside, on the grounds that the order was made “irregularly, illegally or against good faith” within Pt 36.36.15 of the Uniform Civil Procedure Rules or that the making of the order involved an abuse of process or on whether the institution of the criminal proceedings against Mr Kew in the Local Court involved an abuse of process.

63 It is my function in the determination of these applications to decide whether the notices to produce should be set aside wholly or in part, as requiring the production of documents not having an apparent relevance to facts in issue or which are not sufficiently “specific” or “clearly identified” or on the grounds that compliance would be oppressive, that is seriously and unfairly burdensome.

64 Applying these criteria, I have decided that pars 2, 6, 7 and 8 of the notices to produce should not be set aside. I understand that pars 11 and 12 of the notices to produce are not objected to and have already been fully or at least partly complied with.

65 My understanding of par 2 is that it requires production of all documents between the persons named or between one of the persons named and some other person regarding the commencement or the authorisation of the commencement of the criminal proceedings against Mr Kew in the Local Court prior to 25 August 2004. So interpreted, I consider that the documents described in par 2 have an apparent relevance to whether the institution of the criminal proceedings in the Local Court involved an abuse of process and are sufficiently clearly identified. Complying with par 2 should not be oppressive.

66 I consider that the documents described in pars 6, 7 and 8, which are limited to documents coming into existence between 22 October 2005, the day after the notice to produce of 21 October was given requiring the production of any delegation from the Commissioner to Mr Robinson, and 28 October 2005, the last day proceedings 14160/05 were before Grove J, have an apparent relevance to whether the order made by Grove J on 28 October was made irregularly, illegally or against good faith or involved an abuse of process and are sufficiently clearly identified. Complying with these paragraphs should not be oppressive.

67 Documents falling within one of pars 2, 6, 7 and 8 of the notices to produce may be documents which would ordinarily be protected from disclosure by client legal privilege. I am not to be taken as making any decision about whether any such documents would, nevertheless, have to be produced, on the basis that Mr Kew is alleging that abuses of process occurred. If the Commissioner objects to producing any document or documents on the grounds of client legal privilege and Mr Kew disputes that the Commissioner is entitled to claim the privilege, the disputed claim to privilege will have to be adjudicated on.

68 I consider that all of the remaining paragraphs in the notices to produce, that is pars 1, 3 to 5, 9 and 10 and 13 to 24 should be set aside on one or more of the grounds of lack of apparent relevance, lack of specificity and oppressiveness.

69 I order that the notices to produce given on or about 24 February 2006 in proceedings 14160/05 and 15876/05 be set aside, with the exception of pars 2, 6, 7, 8, 11 and 12. I order that each party pay their own costs of the applications to set aside the notices to produce.

**********

7 June 2006

HIS HONOUR : I refer to the judgment I delivered this morning and in particular to par 69. I revoke the order I made in the first sentence of par 69 and make the following order. I order that the notices to produce given on or about 24 February 2006 in proceedings 14160/05 and 15876/05 be set aside with the exception of pars 2, 6, 7, 8 12 and 13.

The order as to costs stands.