Shand and Sharrock and Anor
[2016] FCCA 2234
•5 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHAND & SHARROCK & ANOR | [2016] FCCA 2234 |
| Catchwords: FAMILY LAW – Subpoena directed to SAPOL – subpoena seeks production of police incident reports and criminal history – SAPOL policy to charge fixes fee in respect of particular categories of document – whether costs of production reasonable – application of Federal Circuit Court Rules – will costs of complying with subpoena create substantial loss or expense – notice given – application of South Australian regulation – conflict of laws. |
| Legislation: Family Law Act 1975 (Cth), ss.65E, 69ZW Police Act 1998 (SA), s.5 |
| Cases cited: McIlwain v Ramsey Food Packaging Pty Ltd & Ors (2006) 221 ALR 785 Oatsheen Pty Ltd v The Deputy Registrar of Child Support (1998) FLC 93-001 Moriarty & Moriarty [2009] FamCA 369 Northern Territory v GPAO (1999) 196 CLR 533 |
| Applicant: | MS SHAND |
| First Respondent: | MR SHARROCK |
| Second Respondent: | COMMISSIONER OF SOUTH AUSTRALIAN POLICE |
| File Number: | ADC 1763 of 2010 |
| Judgment of: | Judge Brown |
| Hearing date: | 26 July 2016 |
| Date of Last Submission: | 26 July 2016 |
| Delivered at: | Adelaide |
| Delivered on: | 5 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Anderson |
| Solicitors for the Applicant: | Northside Lawyers |
| Counsel for the First Respondent: | Mr P Doube |
| Solicitors for the First Respondent: | Paul Doube Lawyers |
| Counsel for the Second Respondent: | Mr S O'Flaherty |
| Solicitors for the Second Respondent: | Crown Solicitor’s Office |
ORDERS
The application in a case filed on 9 June 2016 is dismissed.
Ms Shand pay the costs of the Commissioner of the South Australian Police incurred by the Commissioner in respect of supplying documents to the court pursuant to a subpoena issued on her behalf fixed in the sum of $1,970.50.
IT IS NOTED that publication of this judgment under the pseudonym Shand & Sharrock & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1763 of 2010
| MS SHAND |
Applicant
And
| MR SHARROCK |
First Respondent
And
| COMMISSIONER OF SOUTH AUSTRALIAN POLICE |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to a subpoena addressed to the Commissioner of the South Australian Police (SAPOL), requesting details of the criminal record and previous involvement with police of a person who is a party to proceedings under the Family Law Act 1975. Issues have arisen about the costs involved in producing these documents to the court and whether those expenses are reasonable.
The proponent of the subpoena is Ms Shand. She and Mr Sharrock, whose police involvement is the subject of the subpoena, have been involved in contentious proceedings regarding the care of their children – X born (omitted) 2008; Y born (omitted) 2009; and more recently Z, born (omitted) 2014; – since mid-2011, in three distinct sets of proceedings before the court.
On 25 February 2016, solicitors for Ms Shand issued a subpoena, directed to the Commissioner of Police, requiring the production of the following groups of documents to the court:
“2.In respect of Mr Sharrock (date of birth (omitted) 1981) all police reports and records including, but not limited to:
2.1 Criminal history
2.2All apprehension reports and police incident reports in relation to each matter in the criminal history
2.3 Pending charges
2.4Applications for and copies of any apprehended violence or intervention orders granted and supporting affidavits.”
The documents were to be produced to the court on or before 4:00pm on 31 March 2016. The Commissioner did not resist the production of these various groups of documents which from the perspective of SAPOL, are classes of document regularly subject to subpoena and of a type which it routinely compiles as it discharges its various statutory functions.
Mr Sharrock and Ms Shand began to live together, in (omitted), in early 2007. They agree they finally separated in September of 2013. Ms Shand has an older child, from an earlier relationship, who lived with the parties during their relationship. He is A born (omitted) 2005.
Ms Shand’s position is that Mr Sharrock is a violent and controlling person, who has assaulted both her and A in the past. In the first round of proceedings, commenced in May of 2011, she resisted Mr Sharrock spending time with either X or Y. She asserted that in 2008, Mr Sharrock had assaulted A, which had resulted in the involvement of the police and charges being laid against Mr Sharrock.
It is Mr Sharrock’s position that Ms Shand has consistently concocted claims of violence against him in order to deny him from having any proper level of relationship with either X or Y and more recently Z. He asserts that it is Ms Shand who has been violent and provocative towards him, to which behaviour he has been compelled to react in self-defence.
In March 2013, following a process of supervised time at the (omitted) Children's Contact Centre and the production of both a family report and a psychiatric examination of Mr Sharrock, final orders were made with the consent of both parents, that X and Y would live with their mother and spend regular time with their father on weekends and on special occasions which time was not to be subject to supervision.
On 26 November 2013, Ms Shand applied to the court to suspend or discharge the final orders of March 2013, so far as they allowed Mr Sharrock to spend time with the children concerned. In support of her application, she deposed that she and Mr Sharrock had resumed their relationship briefly between July and September of 2013. Thereafter, she alleged that she had been the subject of a serious incident between 25 and 26 September 2013, during which she had been held hostage in her home by Mr Sharrock and assaulted.
It was further her case that X and Y had been exposed to this violence which had resulted in them suffering a significant degree of emotional trauma. It is common ground between the parties that police were called to the incident and Mr Sharrock was arrested and subsequently remanded in custody.
Ms Shand’s application was listed before the judge of the court (Judge Simpson), who had previously dealt with the earlier proceedings, leading to the final consent orders of March 2013. Ultimately, on an undefended basis in March of 2014, Judge Simpson made the orders as sought by Ms Shand. As such, no formal arrangements were in place for Mr Sharrock to spend time with either X or Y.
Mr Sharrock commenced the third round of proceedings, which remain on foot and in which the applicable subpoena has been issued on 28 April 2015. He seeks the discharge of the ex-parte order made on 31 March 2014 and in lieu thereof a regime which would see him resuming spending time with X and Y, in similar terms to the orders of 18 March 2013, with some extension regarding school holidays. He does not seek to challenge that the children should continue to live predominantly with their mother.
Mr Sharrock conceded that he had no relationship with Z, given that he had been born after the parties’ final separation. In these difficult circumstances, he also wished that the issue of Z’s paternity be determined beyond any shadow of scientific doubt. A subsequent parentage test has revealed that Mr Sharrock is Z’s father.
In support of this application, Mr Sharrock alleged that Ms Shand had precipitated the incident of 25 September 2013, which had led to his incarceration, by firstly assaulting Y and then stabbing him (Mr Sharrock) three times in the left shoulder with a screwdriver. He acknowledges that he punched Ms Shand in self-defence.
Following this incident, Mr Sharrock confirms that he was arrested and refused bail. He was held in custody for a period of three months, prior to being released on home detention bail. During this period, Ms Shand’s application to suspend arrangements for him to spend time with the children was issued and dealt with by the court without any involvement from him.
It is Mr Sharrock’s position that he maintained his innocence in respect of any charge of assaulting Ms Shand and, as a consequence, the charges against him proceeded to trial, in August 2014, in the Port Lincoln Magistrates’ Court. On this occasion, the court found Mr Sharrock to be not guilty of a charge of aggravated assault. Mr Sharrock asserts that the presiding magistrate expressed doubt about the veracity of Ms Shand’s evidence.
In her answering material filed in the proceedings in this court, Ms Shand maintained that she had been the victim of a serious assault in September 2013, which had resulted in her sustaining concussion, bruising, swelling, blurred vision and a fracture under the bone of her eye.
Accordingly, she maintained that the police were correct to charge Mr Sharrock and it was appropriate than an interim restraining order be issued against him. In these circumstances, Ms Shand opposed the court making any orders permitting Mr Sharrock to spend time with the children concerned.
On 10 August 2015, against this difficult background, I made orders which envisaged Mr Sharrock spending time with X and Y for brief fortnightly periods of time again subject to the supervision of the (omitted) Children's Contact Service. Given Z’s age and the uncertainty about his paternity, no orders were made for him to spend time with Mr Sharrock.
This supervised time took place between October and November of 2015. It proceeded uneventfully, with both children appearing to enjoy their time with their father. In these circumstances, Mr Sharrock’s time with the children has been extended. He is currently spending time with X and Y on alternate weekends on each Saturday and Sunday morning. The parties’ competing applications have been fixed for trial and a further family report ordered which was released to the parties in early June of 2016.
The major evidentiary issue in dispute between the parties concerns the nature of their relationship, particularly whether it was regularly characterised by family violence and if so, who of the parties was the major perpetrator of it. It is in this context that the subpoena to SAPOL is to be considered.
The current application
On 9 June 2016, the solicitor for Ms Shand filed an application in a case which named the Commissioner of SAPOL as the respondent. In this application, the following orders were sought:
“1. That pursuant to Rule 15A.11 of the Federal Circuit Court Rules this Honourable Court make a direction as to the reasonable compliance costs of the respondent to the subpoena to the South Australian Police filed in this matter on 25 February 2016.
2. That in the event this Honourable Court finds the reasonable compliance costs of the respondent to be $500 or less then there be an order that the respondent pay the applicants legal fees of and incidental to this application as allowable under Schedule 1 of the Federal Circuit Court Rules.
3. Such further or other Orders as this Honourable Court deems fit.”
The Commissioner of Police has not formally responded to this application. However, the Commissioner has appeared at court and through his counsel, Mr O’Flaherty, has indicated that he opposes the making of these orders.
Rather, he seeks that Ms Shand satisfy an invoice, which has been provided to her solicitors, in the sum of $1,970.50. Mr O’Flaherty submits this is a reasonable amount to supply the various documents which were subject to subpoena and which have, in fact, been supplied to the court.
The application listed on Ms Shand’s behalf is supported by an affidavit of her solicitor, Mr Hetzel-Bone, filed 9 June 2016. The Commissioner of Police relies on two affidavits filed respectively by Ms D and Mr D, who are each public servants, employed by SAPOL, in its Statutory Compliance Section and Financial Management Services Branch respectively.
It is common ground between the parties that SAPOL receives many subpoenas per month issued out of the Federal Circuit Court and the Family Court, which arise as a consequence of Family Law Act proceedings.
As such, it was the view of both Counsel in the matter that the application in question raised issues of general application and importance, particularly to legal practitioners and their clients engaged in family law proceedings, especially those in which it was alleged that the SAPOL had been involved with one or both of the parties concerned. As such, I have been provided with extensive written submissions by Mr Anderson, counsel for Ms Shand and by Mr O’Flaherty, for which I am grateful. Mr Sharrock’s counsel, Mr Doube is aware of the proceedings but has chosen not to engage in them.
Chronology of events relating to the subpoena
There is no controversy regarding events relating to the service of the subpoena and the subsequent production of documents. The subpoena was received by the Commissioner on 3 March 2016, at Police Headquarters. It was then forwarded to the Statutory Compliance Section, which currently Ms D manages.
The subpoena, on receipt, as a matter of routine, was diarised and date stamped. This process includes the allocation of the subpoena to an officer, who becomes responsible for its overall processing by the Statutory Compliance Section.
SAPOL operates a computerised central database known as the Police Information Management System (PIMS). PIMS stores records of apprehension reports; antecedent reports; police incident reports; and pending charges. Each of these types of record was requested by Ms Shand in the subpoena issued, on her behalf, by Mr Hetzel-Bone.
Ms D deposes that one of the responsibilities of the officer tasked with attending to a subpoena is to identify all relevant documents in PIMS together with their identification numbers. The purpose of this task is to estimate SAPOL’s costs in identifying and then isolating the documents concerned.
In certain cases, the proponent of a subpoena is entitled to a remission of fees. Otherwise the officer is required to send an estimate letter, which, as its name suggests, contains an estimate of the fees anticipated. Recipients of legal aid are entitled to a remission of the fee.
On 18 March 2016, Ms M, an information services officer within the Statutory Compliance Section wrote to Mr Hetzel-Bone and indicated that her preliminary assessment of the relevant subpoena had identified 39 categories of documents, which raised a potential cost for supplying this information of $2,746.00. In these circumstances, Ms M indicated to Mr Hetzel-Bone that if he wished to vary or withdraw the subpoena he should contact the Information Services Branch.
Mr Hetzel-Bone responded to this correspondence by indicating that his client was no longer in receipt of legal aid, as her aunt was paying her legal fees. However, notwithstanding this generosity, on the part of Ms Shand’s aunt, Mr Hetzel-Bone characterised her (Ms Shand) as a person of limited means, who is in receipt of social security.
Mr Hetzel-Bone requested that Ms M provide him with an estimate of costs, if the scope of the subpoena was narrowed from 2008 to the present. Ms M promptly responded to this request and indicated that the potential cost for supplying this narrowed range of documentation would be $1,970.50.
On 29 March 2016, Mr Hetzel-Bone wrote to Ms M and advised that Ms Shand had requested that the full range of documents be provided. As a consequence of this, on 31 March 2016, 27 documents, comprising 14 police incident reports and 13 apprehension reports, together with one offender history report were supplied to the registry of the court.
These documents were supplied in electronic form on a DVD provided to the court. The registry itself provides a DVD reader, which enables individuals to access documents, once leave has been granted for such inspection. Thereafter, a person can determine whether it is necessary to facilitate the making of paper copies, for use in the proceedings concerned.
On 4 April 2016, Mr Hetzel-Bone requested Ms M to provide him with 15 additional documents, comprising two affidavits, two further intervention reports, seven further police reports and four further apprehension reports. These 15 documents were supplied to the court, again in electronic form, on 15 April 2016.
Notwithstanding the request for additional documents, on 5 May 2016, SAPOL invoiced Mr Hetzel-Bone’s firm in the sum of $1,970.50, which was itemised as relating to 27 apprehension/police incident reports and one offender history report, in respect of Mr Sharrock. The invoice indicates that each apprehension/police incident report cost $70.50 and Mr Sharrock’s offender history report cost $67.00. The invoice did not include any charge for the additional 15 documents, provided on 15 April 2016.
Mr Hetzel-Bone wrote to Ms M, following his inspection of the documents concerned, on 4 April 2016. He queried the charge of $2,746.00, on the basis that a number of the produced items were duplicates, and provided electronically. He further contended that on previous occasions, when a similar amount of material had been produced, on the basis of his past experience, the cost had been significantly less.
Mr Hetzel-Bone has expanded on these concerns in his recently filed affidavit. He characterises the cost of providing Mr Sharrock’s antecedent report, given that it is one page in length, of $67.00, as being excessive. Further, he complains that it is unreasonable that a flat rate of $70.50 is charged for the production of apprehension reports, regardless of the length of the report in question and whether or not the report itself contains duplications.
In these circumstances, by reference to the Federal Circuit Court Rules, which allow a scanning fee of $0.71 per page and the time, which he believes it would take a clerk to identify the files and burn them onto a DVD, a more reasonable fee would be around $210.00. However, Mr Hetzel-Bone has indicated that he regards a fee of $500.00 as being a reasonable one to allow SAPOL, for the costs of providing the DVDs in question.
In her affidavit, Ms D delineates, in detail, the steps required to be taken, in respect of each subpoena received by SAPOL, which entails the production of records from PIMS. This process includes the necessity for redacting personal information relating to third parties. In addition, information relating to pending proceedings is not released for reasons relating to professional confidentiality and for public policy reasons. Documents, pending their release, are also screened to ensure that no protected documents are inadvertently or erroneously released pursuant to subpoena.
In her affidavit, Ms D deposes as follows:
“The length of time involved in the process of complying with each subpoena varies, depending on the number and complexity of reports generated. SAPOL does not maintain a practice of recording time expended in compliance with each subpoena. I would estimate, a basic subpoena, of the kind in this matter, generally consumes fifteen (15) to twenty (20) hours of the attending officer’s time.”[1]
[1] See Affidavit of Ms D filed 22 July 2016 at paragraph 19
Mr D provides budget advice to the executive of SAPOL and regularly liaises with the Department of Treasury & Finance, presumably in respect of the ongoing funding of SAPOL and whether it is functioning within the budget provided to it by government.
Mr D deposes that it is only since 1 July 2010 that SAPOL has imposed a fee for the production of police incident reports. This fee was inaugurated to recover what SAPOL management viewed as the “labour intensive process of reviewing and providing those reports”. In 2009, 400 antecedent reports and 200 apprehension reports were apparently requested, which SAPOL regarded as being financially burdensome, given the time taken to process the subpoena requests.
Against this background, the Minister for Police published a schedule of fees, arising under the provisions of the Police Regulations 2014 (SA), which inaugurated a fee of $61.00 for the production of police incident reports. The regulations provide for the collection of other fees in respect of such matters as the provision of vehicle collision reports, which are frequently sought by parties in civil actions arising from such incidents.
More recently again, standard fees have been regulated for the production of antecedent reports and apprehension reports. These fees have also been subject to regular gazetting and are regularly received in respect of CPI increases, announced at the beginning of each financial year. It is these fees which have been charged to Mr Hetzel-Bone in respect of the various documents sought by him. Pursuant to the Police Regulations 2014, at the time of the subpoena in question, the cost of provision of an antecedent report was $67.00; an apprehension report $70.50; and a police incident report $70.50.
Mr D has deposed as follows in respect of the South Australian government’s rationale for imposing the various fees in question:
“The new fees imposed for the production of Antecedent Reports and Apprehension Reports were similarly determined with a view to offset the labour intensive process of reviewing and providing these reports, and were also intended to be adjusted each year for CPI increases. Whilst the time taken to conduct this review with respect to Apprehension Reports would vary, based on the length and complexity of the report, the fee of $61.00 was set to be consistent with other reports of a similar nature, such as Vehicle Collision Reports and Police Incident Reports.”[2]
[2] See affidavit of Mr D filed 22 July 2016 at paragraph 9
Mr O’Flaherty confirms Ms D’s evidence that the various officers of the Statutory Compliance Office do not keep a running tally of the administrative hours spent in respect of complying with each subpoena received. It is Mr O’Flaherty’s submission that it would be oppressive to expect the Office to keep such records, which are likely to have the consequence of impeding its operation rather than making it more efficient.
It is Ms D’s evidence that the time taken, in respect of each subpoena, varies with the complexity and number of the documents requested. It cannot be anticipated, when any subpoena is first received, whether the office will have to consult with any police personnel, who have previously been involved in compiling the documents which have been placed on PIMS, as to potential procedural implications, arising from the documents concerned. Given the irregular hours many police officers work, this has the potential to be time consuming.
The essence of Ms D’s evidence is that it is a simplistic analysis to suggest that it is merely a question of pushing a few buttons, on a keyboard, to download the documentary material lodged on PIMS in respect of either any specified individual or incident. It is her evidence that the process itself potentially requires liaison with the police personnel involved and close scrutiny to prevent breaches of confidence and provide anonymity for any third parties named or affected by any particular category of documents.
It is the effect of Mr D’s evidence that the fees in question were calculated by the South Australian government to off-set what it perceived to be a significant impost on its resources, particularly in terms of the administrative hours required to satisfy such subpoena.
Mr D further deposes that the fees may, in some cases, be more than the actual cost of complying with the subpoena and in other cases more. In Mr O’Flaherty’s submission, this is to be regarded as a case of swings and roundabouts. However, in the particular case before me, I accept Ms D’s evidence that the subpoena in question was in the middle of the range, requiring some 15 to 20 hours of administrative time.
Mr Anderson, counsel for Ms Shand is critical that the evidence of Mr D and Ms D does not provide a more comprehensive analysis of the hourly wages paid to officers within the Statutory Compliance Office. As such, he contends that the Commissioner has failed to provide any evidence as to the exact cost, which it has incurred, in complying with the actual subpoena in this case.
In Mr O’Flaherty’s submission, this is again a simplistic analysis. He submits that SAPOL has created a specific department, within its organisation, to deal with answering subpoenas seeking access to its records. Accordingly, any proper analysis of the costs of answering any particular subpoena must fairly include the running costs of maintaining such an office, including the funds outlaid for accommodation, electricity and the like. Essentially, it is not merely a question of the hours alone spent on the task.
It is Mr O’Flaherty’s submission that it would be oppressive to expect the Commissioner to undertake such a task, which is beyond the scope of these proceedings. Rather, Mr O’Flaherty submits that, in good faith, the South Australian Legislature has attempted to strike a balance between its concerns and those of individuals seeking access to its records for civil court proceedings.
The relevant legal provisions and their application to the case
In my view, at this point, it is useful to outline some of the functions of subpoena in civil proceedings. In McIlwain v Ramsey Food Packaging Pty Ltd & Ors[3] Greenwood J summarised some of these principles, in the following terms:
“The documents must be relevant to an issue raised on the pleading and be used to illicit documents to support the applicant’s existing case. It cannot be used for purposes of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case, or to investigate the character of the opposing parties’ evidence.”
[3] McIlwain v Ramsey Food Packaging Pty Ltd & Ors (2006) 221 ALR 785 at 785
In respect of the issue of any potentially oppressive impact on the recipient of a subpoena, His Honour said as follows:
“The issue of the subpoena must not, in all the circumstances, be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be ‘seriously unfairly burdensome, prejudicial or damaging’ and ‘productive of serious and unjustifiable trouble and harassment’.”
In this particular case, Ms Shand has sought every apprehension report and police incident report relating to Mr Sharrock, together with details of pending proceedings. Her solicitor was advised, at an early stage, that potentially there were 39 such items, some of which pre‑dated the parties' relationship.
In addition, it is clear that Ms Shand has some personal level of knowledge regarding when police were called to incidents involving her and Mr Sharrock. In these circumstances, it is difficult to resist the conclusion that, in issuing the subpoena, Ms Shand was fishing for potentially damaging information about Mr Sharrock, which she herself had not previously raised in her pleadings and about which she had no knowledge.
I appreciate that these proceedings have a special character and, as such, should not be characterised as being merely an adversarial contest between the parties themselves. Given they have implications for the best interests of X, Y and Z, they are to be regarded as combining both adversarial and inquisitorial aspects.
In this context, there are avenues available to the parties in proceedings concerning children, particularly those cases involving allegations of a child having been exposed to neglect and family violence, to approach the court to seek production from government agencies of documents related to notifications of abuse and family violence as they pertain to children.
The relevant section is section 69ZW of the Family Law Act 1975, which reads as follows:
“(1)The court may make an order in child‑related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.
(2)The documents or information specified in the order must be documents recording, or information about, one or more of these:
(a)any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;
(b)any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;
(c)any reports commissioned by the agency in the course of investigating a notification.”
Pursuant to regulation 12CD of the Family Law Regulations 1984, SAPOL is such a prescribed agency. Accordingly, in this particular case, it was open to either Ms Shand or Mr Sharrock to approach the court to request the making of an order pursuant to section 69ZW requiring production of any notifications, referable to the children in this case, as a consequence of them being exposed to family violence. This procedure would not have exposed either party to any potential cost.
Part 15A of the Federal Circuit Court Rules (2001) deals with subpoenas. In particular rule 15A.11, which is headed costs of complying with subpoena if not a party deals with the court’s jurisdiction to make orders in respect of the costs of complying with a subpoena by a person, who is not a party to the proceedings concerned.
The rule reads as follows:
“Cost of complying with subpoena if not a party
(1) This rule applies if:
(a)a subpoena is addressed to a person who is not a party in the proceeding; and
(b)before complying with the subpoena, the person subpoenaed has given the issuing party notice that substantial loss or expense would be incurred in properly complying with the subpoena, including an estimate of the loss or expense; and
(c)the Court is satisfied that substantial loss or expense is incurred in properly complying with the subpoena.
(2)Unless the Court or a Registrar otherwise directs, the amount of the loss or expense estimated under paragraph (1)(b) is payable by the issuing party.
(3)The Court may fix the amount payable having regard to the scale of fees and allowances payable to witnesses in the Supreme Court of the State or Territory where the person is required to attend.
(4)The amount payable is in addition to any conduct money paid.
(5)If a party who is to pay an amount under this rule obtains an order for the costs of the proceeding, the Court may:
(a)allow the amount to be included in the costs recoverable; or
(b) make any other order it thinks fit.”
In this case, the evidence clearly indicates that Ms M, on behalf of the Commissioner, provided an estimate of the Department’s estimated costs of complying with the subpoena, prior to it undertaking the process of isolating and compiling the documents sought, in an appropriate form. It is also apparent that Ms M, of her own volition offered Mr Hetzel-Bone the opportunity to seek a more confined range of documents, which opportunity he declined, notwithstanding the estimate of costs provided to him.
Notwithstanding the fact that the Commissioner’s officer informed Mr Hetzel-Bone of the costs involved and these costs are regularly gazetted, Mr Anderson seeks that the court, pursuant to Rule 15A.11(2), fix the costs, which should be allowable to the Commissioner, in this case, in the sum of $500.00, which, as previously indicated, is the amount calculated by Mr Hetzel-Bone, as being reasonable.
Given the number of subpoenas, which are issued to the Commissioner each year, in family law proceedings, I accept that this is an issue of some general importance to the legal profession. It also has implications for the Commissioner of Police, particularly as to how he chooses to fund and organise the Statutory Compliance Office, although this is ultimately a matter for the executive arm of the South Australian Government.
In Oatsheen Pty Ltd v The Deputy Registrar of Child Support, the Full Court of the Family Court was dealing with the then Family Court equivalent of Rule 15A. In the case, the respondent, in proceeding to enforce a child support debt to the Commonwealth, had caused a subpoena to issue to a proprietary company, requiring it to produce records relating to its financial relationship with the child support debtor concerned. The Deputy Child Support Registrar believing, at the time, that the debtor had an interest or connection with the company.
Seventeen boxes of documents were ultimately produced to the court, at first instance and a claim for costs of $5,000.00 was made. This claim was reject by both the court at first instance (the Local Court of NSW); on appeal in the Family Court (Purvis J); and ultimately by the Full Court (Finn, Kay and Maxwell JJ).
It should also be noted that the relevant Rule (O.20 r.17) was in significantly different terms to the Rule 15A in that there was no procedure by which the object of a subpoena could give notice that in complying with the terms of the subpoena in question it might incur substantial loss or expense.
In the case, the Full Court held as follows:
“…in dealing with an application under O.20 r.17, the court must first be satisfied that costs and expenses have been incurred and that they have been reasonably incurred. We consider that this is the clear meaning of the words of the rule. It may well be of course that in some, even many, cases it will not be difficult to satisfy the court that because of considerations of distance or volume, the costs and expenses have reasonably been incurred. But as Purvis J. held there has to be some evidence of costs actually incurred by the applicant. Having satisfied itself that costs have been reasonably incurred, the court then has a discretion whether to allow the applicant, such costs. If the court exercises its discretion in favour of the applicant the court may then assess the costs itself or presumably direct that the matter go to taxation.” [4]
[4] Oatsheen Pty Ltd v The Deputy Registrar of Child Support (1998) FLC 93-001 at 95,116
Mr Anderson relies on this passage. It is his submission that, in the current case, the Commissioner has produced insufficient evidence that the cost sought by him have been reasonably incurred, as the costs have, in effect, been generically calculated, by reference to a scale rather than being directly referrable to the costs actually incurred in gathering the specific documents sought in respect of Mr Sharrock. In these circumstances, Mr Anderson contends that the court is not in a position to exercise the discrete discretion incumbent upon it to determine whether the costs claimed, in the individual case before it are reasonable or otherwise.
In Moriarty & Moriarty Cronin J considered the application of Rule 15.23 of the Family Law Rules 2004, which is headed Conduct Money and Witness Fees. Again it should be noted that it is significantly different, in form, to the applicable Federal Circuit Court Rule in that it does not have a provision which allows for the recipient of a subpoena to give an estimate of the costs likely to be incurred in complying with the subpoena in question.
Rather the rule provides for a person to be paid conduct money of an amount sufficient to meet the reasonable expenses of complying with the subpoena. Thereafter, pursuant to Rule 15.23(3) if the recipient of the subpoena incurred a substantial loss or expense that is greater than the amount of the conduct money application might be made for reimbursement.
Cronin J, in my view, righted pointed out that what was reasonable to ensure compliance was likely to depend, like beauty, on the eye of the beholder. He also considered that the subpoena process was an integral part of the administration of justice. As such, he considered that, it was in the public interest that the community (I assume in the sense of individual members of it) should bear some of the costs of subpoena compliance costs, so that all could benefit from the efficient administration of justice.[5]
[5] Moriarty & Moriarty [2009] FamCA 369 at [56]
In Moriarty & Moriarty, unlike the present case, the court was dealing with a claim for professional fees alleged to have been incurred by a firm of solicitors in complying with a subpoena to produce documents. One of the issues arising being whether what was a reasonable cost of complying could be calculated by reference to professional scales and, if so, what should be the level of charge out.
In this context, Cronin J made a number of useful comments as follows:
“The rules refer to a ‘substantial’ loss or expense.
The determination of what is substantial is very subjective. In my view, it means that the expense must be large causing loss; it must be unusual in the sense of requiring normal activity to be stopped; or it must cause an unfair inconvenience having regard to the fact that the recipient has nothing to do with the litigation.
Assessment of the reasonableness of burdens involved in complying with a subpoena must take account the capacity of a party to collect and produce the documents. That means that in a large organization, the capacity to cover the expense is greater than in a small organization.
Notwithstanding the administration of justice issue, the rules are not intended to put the individual presenting the documents in a position where they lose income or capital. The rule however refers to a substantial expense and each situation must be determined on its peculiar facts.
However, if the subpoena is simple and clear, requiring the production of the recipient’s own documents, the inconvenience is intended and expected to be minimal.
Thus, in a case where a professional fee is claimed or the bobcat driver claims significant hours of “downtime”, the question still remains whether the finding, collecting, collating, marshalling and producing the documents or materials required the attention of the owner, partner or professional or whether it could be done by a clerical person albeit with some ownership or professional oversight. It is that question that the judicial officer has to ask in every case.
The outcome is determined by the exercise of a discretionary judgment guided by the rules of court.
For a “named person” to seek a sum which is controversial or disputed, there is no other way of being able to exercise the court’s discretion other than by having some evidence and that requires the claimant to file an affidavit or, in the event that the person has attended on the day, by hearing some brief oral evidence as to what expense was and was not reasonable. Whilst I appreciate that process exacerbates and increases the costs problem, to do otherwise and apply some subjective view about what amount of work was done by simply looking at a letter is arbitrary and inappropriate.”[6]
[6] Ibid at [57] – [64]
In my view, these comments, though helpful, are not particularly apposite to a large public authority such as SAPOL. As has been indicated, it is not the case that SAPOL has necessarily to drop all its other activities or interrupt its profit making activities to comply with specific subpoenas. Rather, it has recognised that part of its core business, in effect, is complying with subpoenas and to this end it has inaugurated a specific department, with specific procedures to deal with this aspect of its business.
That does not mean to say, of course, that there is no cost involved in complying with such subpoenas. SAPOL, as with all statutory authorities, is answerable to a number of masters. These include not only the general public but also specifically the Government of South Australia. SAPOL is required to be administered in a fiscally responsible manner and provide the community of South Australia with value for money. As such, it does not seem to me to be unreasonable that the Government of South Australia would wish to recoup the expense of complying with subpoenas issued to any of the various statutory entities for which it is ultimately responsible.
Accordingly, I do not consider that it would be reasonable to expect SAPOL to absorb the costs of complying with subpoenas as part of its overall running costs because it is in the community interest to do so, in the sense envisaged by Cronin J. It may be reasonable for the hypothetical bobcat driver, envisaged by His Honour, to have to absorb some of the cost of complying with a one off subpoena. It also may be unreasonable for a firm of accountants or solicitors to charge out the costs of complying with a subpoena at the rate of a partner with many years of professional experience. As Cronin J points out, each such case must be decided on particular facts and circumstances.
In my view, different considerations must apply to large government instrumentalities, such as police, hospitals and emergency services, which are routinely tasked to supply large numbers of records generated in the course of discharging their statutory obligations. The community has a public interest in ensuring that organisations, such as SAPOL, are efficiently administered and, in appropriate circumstances, are in a position to recoup costs incurred from the recipients of services provided by them.
SAPOL is not a corporate entity or a business partnership, like a firm of solicitors or accountants, which necessarily must generate some form of profit or become defunct. Rather it is required to deliver an essential public service. Pursuant to section 5 of the Police Act 1998 (SA) the purpose of SAPOL
“…is to reassure and protect the community in relation to crime and disorder by the provision of services to—
(a) uphold the law; and
(b) preserve the peace; and
(c) prevent crime; and
(d) assist the public in emergency situations; and
(e)co-ordinate and manage responses to emergencies; and
(f) regulate road use and prevent vehicle collisions.”
In discharging these various and important responsibilities, SAPOL necessarily creates significant records relating to many individuals in many and various situations. Fundamentally, it creates these records in order to discharge its statutory obligations to uphold the law and preserve peace and good order. It does not create those records with a view to generating a profit for either itself or the Government of South Australia. In addition, it has an overall responsibility to ensure the security of those records.
In my view, it is in this context that the court must examine whether the charges levied by SAPOL in this matter are reasonable. In this case, I accept that SAPOL routinely has to deal with many subpoenas each year. It does not seem to me to be unreasonable that it would develop a generic scale to deal with the calls on its time and resources to respond to these subpoenas. It has inaugurated a specific department and procedures to process these subpoenas. The applicable charges are publically and regularly disseminated.
I accept Mr D’s evidence that SAPOL has attempted to balance the various public interests applicable to it in its calculation of the costs to be levied in supplying various categories of documents routinely sought from it through subpoena. I further accept that it is simplistic to regard it as a question of merely printing off documents readily available to it on its computer banks. Rather, such documents must be subject to scrutiny to ensure appropriate safeguards and confidentiality are maintained.
The crux of Mr Anderson’s submission is that in each individual case SAPOL, if called upon to do so, must justify its fees by reference to an idiosyncratic calculation of time actually spend on complying with the subpoena. In my view, it would be unreasonable and oppressive to expect SAPOL to do so given the nature of the records held by it and the number of requests received by it annually in respect of these records. Further, I do not accept that this would be reasonable given SAPOL’s overall statutory obligations.
In my estimation, the evidence provided by Mr D and Ms D is sufficient to discharge any obligation upon the Commissioner to satisfy the court that the costs it has incurred in answering the subpoena have been properly incurred. It seems to me that the approach adopted by SAPOL of having fixed charges for the production of specified groups of documents is an objectively reasonable response to its competing obligations to serve the taxpayers and executive government of South Australia and assist in the administration of justice, including in the Federal sphere.
As Cronin J pointed out in Moriarty what is a substantial loss is likely to be a highly subjective issue. The cost of complying with a request to supply one or two police incident reports and one criminal history will result in an invoice of around $200.00, which cannot be regarded as an excessive sum, in my view.
That, of course, is not what happened in the present case. Mr Hetzel-Bone requested every police incident report relating to Mr Sharrock and this resulted in a potential invoice approaching $2,000.00. Accordingly, it was the quantity of documents requested, which led to what Mr Hetzel-Bone considers an excessive and unreasonable charge. The evidence also clearly indicates that it was the broad nature of the subpoena issued, which resulted in the multiplicity of documents.
I am concerned that Mr Hetzel-Bone has operated backwards from the sum proposed by Ms M and now seeks to argue that because it is a large sum, in the context of his client’s financial circumstances, it must ipso facto to be unreasonable charge. In my view, if I accept that the individual charges for the production of police incident reports are reasonable, it is more logical to consider whether the terms of the subpoena itself were reasonable.
The agreed chronology indicates that SAPOL did all that was required of it pursuant to Rule 15A.11(1)(b). Ms M advised Mr Hetzel-Bone that there was a multiplicity of police incidents reports, relating to Mr Sharrock and accordingly his client was at risk of incurring substantial costs if compliance with the full terms of the subpoena was required. She also proposed a compromise in respect of the supply of a truncated schedule of documents.
It seems to me the intent of the rule is to protect both the initiator and respondee of a subpoena from disputes of the kind, which are the subject of these proceedings. From SAPOL’s perspective, the sum in question was likely to have been of no great moment. It had obligations to maintain the Statutory Compliance Office regardless of whether or not solicitors, such as Mr Hetzel-Bone, continued to issue to subpoenas directed to it. It is not a profit making organisation per se.
In advising Mr Hetzel-Bone of the costs involved, Ms M was attempting to protect his client from incurring unnecessary costs, rather than vice versa. In these circumstances, it seems to me that the ball was in Mr Hetzel-Bone’s court to consider his client’s case and determine which groups of documents were likely to be essential to it. As pointed out, at the outset, the purpose of a subpoena is not to an exercise in fishing. In this context, Ms Shand has not, as yet, indicated what is the forensic purpose of her subpoena of all the documents concerned.
In my view, it would be inappropriate for this court to substitute its own judgement for that of the South Australian Government in calculating what is to be charged for police incident reports and the like. This is particularly so given that the charges for the production of individual reports seems to me to be a reasonable one, given the niceties of the documents concerned and the need for care to be taken to protect confidentiality and the like matters.
In my view, it would be a nonsense if the court was to determine that a person who has subpoenaed a multiplicity of such documents should, in effect, be granted a discount on the costs related to production, because of the quantity of documents sought resulting in an exponential increase in cost.
Rather, the court should encourage those who would issue subpoenas to consider closely the range and subject matter of the documents sought and tailor their subpoenas appropriately and carefully. Such an approach, in my view, is also calculated to serve the interests of the administration of justice.
In all the circumstances of this case, I am satisfied that the Commissioner has satisfied any obligation, arising under Rule 15A.11(1)(c) that it has incurred the costs sought in complying with the subpoena issued on behalf of Ms Shand. For these reasons, the application in a case must be dismissed.
It is further Mr O’Flaherty’s submission that this court has no authority to disregard the applicable provisions of the Police Act 1998 (SA) and the Police Regulations 2014 which authorise the fixing of the applicable fees in this matter. In this regard, Mr O’Flaherty relies on section 79(1) of the Judiciary Act 1903 (Cth) which reads as follows:
“(1)The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.”
It is Mr O’Flaherty’s submission that the court is bound to apply the applicable South Australian legislation, which is specifically applicable to the costs to be levied in respect of the provision of police records. On the other hand, Mr Anderson contends that the South Australian regulation is inconsistent with the provisions of Rule 15A.11 and according to section 109 of the Constitution, the latter must prevail. It is Mr Anderson’s contention that Rule 15A.11 has otherwise provided in respect of the issue of the costs to be levied in respect of the production of documents to the court by third parties.
Section 109 of the Constitution reads as follows:
“When a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
In Northern Territory v GPAO[7] the High Court discussed the application of section 79 in the context of a family law proceeding, broadly similar to the current matter. A mother filed an application for a sole parenting order, pursuant to the Family Law Act 1975 in the Darwin Registry of the Family Court. She alleged sexual abuse on the part of the father.
[7] Northern Territory v GPAO (1999) 196 CLR 533
The father issued a subpoena requiring the production of documents from the Protection Service Unit of the Northern Territory Community Welfare Department relating to the child. Section 97(3) of the Northern Territory Community Welfare Act prohibited such production. Pursuant to section 65E of the Family Law Act, the Commonwealth had provided that best interests of the child were the paramount concern, for the court, in every case arising under the legislation.
It was argued that the Commonwealth had otherwise provided in respect of the issues pertaining to the child concerned and therefore the Family Law Act had primacy over the provisions of the Community Welfare Act. The High Court, by majority, held that the provisions of the Northern Territory legislation were binding on the Family Court pursuant to section 79 of the Judiciary Act. Gleeson CJ and Gummow J reasoned as follows:
“The objective of s 79 is to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself.”[8]
[8] Ibid at 588 [80]
Where a court exercising federal jurisdiction sits in a particular state of territory, sections 79 and 80 of the Judiciary Act operate to determine how the law of the applicable state or territory and the common law apply to the exercise, by the court, of its jurisdiction.[9] Gleeson and Gummow described this in terms of the state or territory law a surrogate federal law operating beside the relevant federal legislation.
[9] Section 80 provides that the common law will prevail in situations laws in which the laws of “the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect.”
The question for the court, the current matter, is whether section 79 has picked up the relevant provisions of the South Australian Police Act and Regulations and rendered them into surrogate federal laws to operate alongside the provisions in the court’s rules dealing with subpoenas.
In GPAO Gleeson CJ and Gummow J determined that the test to be applied in this regard was whether the operation of the Commonwealth law so reduces the ambit of the state law so that the provisions of the former are irreconcilable with those of the latter, with the result that the Commonwealth legislation otherwise provides.[10]
[10] Ibid at 588 [81]
This issue of irreconcilability, for the purposes of section 109, is to be determined by reference to concepts of repugnancy rather than an analysis of varying degrees of inconsistency between the statutory provisions concerned.
In my view, the provisions of Rule 15A and the Police Regulations are not repugnant to one another. Rather the latter qualifies and defines the court’s discretion arising under the former. In my view, the Police Regulations are rendered a surrogate federal statute by virtue of section 79 and must be applied by this court.
For all these reasons, the application in case filed on 9 June 2016 must be dismissed. The Commissioner has not sought an order for costs arising from the proceeding. Pursuant to Rule 21.02 of the Federal Circuit Court Rules it is open to the Commissioner to make such an application following the publication of these reasons for judgment.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 5 September 2016
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