Tavitian v Public & Environmental Health Council and City of Playford No. Dcaat-02-278

TAVITIAN v PUBLIC & ENVIRONMENT HEALTH COUNCIL
and CITY OF PLAYFORD
[2003] SADC 149
Judge Smith
Civil
Introduction

On 1 September 2003 this matter came on before me as an appeal in this Court’s Administrative and Disciplinary Division. It became obvious in the course of argument that a ruling was necessary on two subpoenas for the production of documents, which were issued by the appellant against both respondents. The appellant contended that the documents sought were necessary for the proper conduct of the appeal and that the respondents had not fully answered the subpoenas. The respondents contended that the subpoenas should be set aside as vexatious, oppressive and an abuse of process of the Court.
I stayed the hearing of the appeal and on 23 September 2003 heard argument as to the subpoenas. I interpolate here that the appellant had from the outset sought to adjourn the appeal on the grounds that the subpoenas had not been fully answered.
This then is my ruling on the subpoenas. I start with some necessary background circumstances.
Background circumstances
The appellant resides at 14 Shaftesbury Road at Elizabeth Vale, which is within the boundaries of the City of Playford. On 6 November 2001 the City of Playford issued a Notice of Insanitary Condition (“Notice”), to the appellant pursuant to s15(1) of the Public and Environmental Health Act 1987. The Notice alleged that the yard of his premises was in an insanitary condition by reason of the fact that:
“1.The premises are so neglected that there is a risk of infestation by rodents or other pests; and
2.The condition of the premises is such as to cause justified offence to the owner of land in the vicinity of the premises.”
I note that “insanitary” is defined in s3(2) of the Public and Environmental Health Act 1987 in the following terms:
“Premises are in an insanitary condition if-
(a) the condition of the premises gives rise to a risk to health; or
(b)the premises are so filthy or neglected that there is a risk of infestation by rodents or other pests; or
(c)the condition of the premises are such as to cause justified offence to the owner of any land in the vicinity; or
(d)offensive material or odours are emitted from the premises; or
(e)the premises are for some other reason justifiably declared by the authority to be in an insanitary condition.”
The Notice demanded that the appellant take certain action to improve the condition of the premises. The appellant appealed against the Notice and its requirements (see s25 of the said Act). The appeal was heard and determined by a Review Committee of the Public and Environmental Health Council (see s26 of the said Act). The Review Committee conducted a hearing in rooms at the offices of the City of Playford on 21 February 2002 and on the same day conducted a site inspection of the appellant’s premises. On 11 March 2003 the Committee in a written decision dismissed the appeal. It extended time for the appellant to comply with the requirements of the City of Playford and made some ancillary orders of its own.
In particular, the Committee upheld the City of Playford’s conclusion that the yard of the premises at 14 Shaftesbury Road Elizabeth Vale was insanitary in the two respects set out in the Notice.
On 24 May 2002 the appellant appealed to this Court pursuant to s29 of the said Act. In his Notice of Appeal he set out the following grounds:
“1.The premises are not in an insanitary condition and the risk of infestation is an unsubstantiated theory
2.I repeatedly requested oraly (sic) & in writing that the City of Playford provide me a list of offensive items, materials, who has been offended and define the radius of the “vicinity” so far they have failed to provide me with these details.
3.Some of the items the City of Playford requires to be disposed of are not a health concern neither caused any hypothetical risk(s).
4.The requests of the City of Playford are individual(s) preferences which are imposed as law disregarding the rights of the ratepayer (occupier) as a result are harsh, unreasonable, unfair, unjust memorabilia they want me to dispose of the premises.
5.The Public & Environmental Health Council Committee should have imposed a compliance date for the City of Playford and not only to the appellant.
6.Although I have made many attempts to come to a reasonable resolution to this matter all have been fruitless.”
The powers of this Court on appeal are set out in s42E of the District Court Act 1991 which provides as follows:
“(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal –
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason.”
(the italics are mine)
So with that background in mind, I now turn to the subpoenas.
The subpoenas
The subpoena issued against the Public and Environmental Health Council sought production of the following documents:
“All documents in relation to the appeal of D Tavitian v City of Playford including notes, memos and personal comments of hearing, correspondence and communication notes via telephone, fax, email.”
The subpoena issued against the City of Playford sought the production of the following documents:
“All documents in relation to D Tavitian and 14 Shaftesbury Road Elizabeth Vale SA 5112 excluding anything in relation to rates. Any complaints received against the property in any form to be included as well internal communication between staff or elected members.”
Notwithstanding the width of the requests and the arguable inappropriateness of a subpoena at the final appeal stage of this matter, both respondents purported to answer the subpoena. The appellant was not satisfied and provided further particulars of the documents, which he sought to be produced.
As to the first respondent, the appellant claimed that it should produce the following documents:
· Notes made by the three members of the Review Committee during or in connection with the hearing.
· Draft reasons for decision which correspondence discloses was forwarded to the three members by the Secretary of the Council.
As to the second respondent, the City of Playford, the appellant claimed that it should produce the following documents:
·    Names and addresses of complainants.
·    Correspondence of the City of Elizabeth with the appellant prior to the amalgamation.
·    Internal communication of staff or elected members of all levels.
·    Complaints made by appellant to the City of Playford and action taken.
·    Minutes, memos, notes and motions of Council meetings.
·    Media releases.
·    Activities of Councillors D Ryan, I Shaw and D MacMillian.
·    Internal/external instructions or directions given/received.
·    Cost(s), payment(s) made in relation to that instruction/direction.
The respondents resist this further production and, as I said, both seek orders setting aside the subpoenas.
Some principles and parameters
The two subpoenas were issued pursuant to section 25 of the District Court Act 1991 which provides inter alia:
“25(1)The Court may, on the application of a party to proceedings or on its own initiative, issue a summons requiring a person to appear before the Court at a specified time and place to give evidence or to produce evidentiary material (or both).”
“Evidentiary Material” is defined by s3 as:
“evidentiary material means any document, object or substance of evidentiary value in proceedings before the Court and includes any document, object or substance that should, in the opinion of the Court, be produced for the purpose of enabling the Court to determine whether or not it has evidentiary value.”
The respondents can make application to set aside the subpoenas as an abuse of process at any stage after the issue. In particular I can entertain it without requiring the contested documents being produced and inspected by the Court (see Hunt v Russell (1995) 63 SASR 402 at 407, 408; Roux v Australian Broadcasting Commission (1992) 2VR 577 at 595; Rule 81.10).
Further, the onus is on the appellant to establish that the documents he seeks have “evidentiary value” within the meaning of s25. The meaning of that phrase and the extent of the onus is discussed in a criminal setting in Carter v Hayes (1994) 61 SASR 451 per King C J at 453. It is clear that “relevance” and “legitimate forensic purpose” mean much the same as “evidentiary value”. What must be established is that “it appears to be ‘on the cards’ that the documents will materially assist” in the presentation of the case (see Alister v Queen (1984) 154 CLR 404 per Gibbs CJ at 414).
It is trite to say that a subpoena and in particular a subpoena duces tecum is a forensic tool employed primarily to require a person who is a non-party to an action to bring relevant evidence to the trial court. In civil actions, parties to the action must disclose and produce for inspection documents which are or maybe relevant. It is impermissible to use a subpoena as a method of obtaining discovery (see R v Wilkey; ex parte Cooke (1991) 2 QdR 447; Commissioner of Railways v Small (1938) 38 SR(NSW) 564 at 575). It is inappropriate to use the subpoena at the stage of an appeal because prima facie the time for taking evidence has past. I say prima facie because in limited and exceptional circumstances evidence can be adduced on appeal and a subpoena may be necessary to obtain it. In respect of this appeal s42E permits this Court to “allow further evidence or material to be presented to it”. Notwithstanding that power and also notwithstanding that the Court is not bound by inter alia “legal forms” (see s42E(2)), for this Court to receive fresh evidence – such as might emerge from the subpoenaed documents – there must be some compelling reasons for doing so along the lines of the established principles for admitting fresh evidence on appeal. In Ventura v Sustek (1976) 14 SASR 395 at 399, Bray CJ said:
“The principles on which an appellate court in a civil case will act in deciding whether it will allow the calling of fresh evidence before that court were exhaustively explored by the Court in Orchard v. Orchard (1972) 3 SASR 89. The same principles, it seems to me, must apply to an application for a new trial on the ground of the discovery of such further evidence. In that case this Court considered the rules laid down by Denning L.J., as he then was, in Ladd v Marshall [1954] 1 WLR 1489 in the following words:
“To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”
We agreed that those three conditions were necessary, but I pointed out, with regard to the last one, that all that is meant by “apparently credible” is that the evidence proffered is not so patently incredible that it can be said that on the fact of it it is not worthy of any credence. In that connection I adopted the words of Harman L.J. in Roe v Robert MacGregor & Sons Limited (1968) 1 WLR 925.”
I pause here to acknowledge that the appellant, who is not a lawyer, has represented himself throughout these proceedings. If it were “on the cards” that some or any of the documents he seeks displayed a deficiency in the decision made by the Review Committee such as to indicate that a miscarriage of justice has occurred then this Court should demand their production and act on them in accordance with s42F. Also, I recognise that the history of this matter thus far has not followed the usual pattern of a trial of facts followed by an appeal. Rather, the City of Playford issued the Notice in a summary way and there followed a review in the nature of an appeal. So confining the subpoena process in the rigid way I have suggested above is probably inappropriate in the circumstances of this matter.
So, for the purposes of this matter, I will assume that the subpoena is the appropriate process at this stage given the Courts power to admit further evidence and “... act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal form ...” (see s42E(1) and (2) of the District Court Act 1991).
The following is a summary of the parameters material to this matter for a valid subpoena:
·    A subpoena must describe the document sought with sufficient particularity to enable the speedy identification of the document (see Re Excel Finance Corporation Ltd; Worthley v Australian Securities Commission (1993) 113 ALR 543; Alliance Petroleum Australia v Australian Gas Light Co (1982) 31 SASR 35 at 45).
·    A subpoena must not be used for “fishing”. It must be “on the cards” that the document will assist the party’s case and speculative possibilities or outside chances will not be sufficient (see Ran v The Queen (1996) 16 WAR 447; R v Ridgeway (1998) 72 SASR 73; Hunt v Russell supra and Fried v National Australian Bank Ltd (2000) 175 ALR 194.
·    A subpoena cannot legitimately seek the production of documents where the oppression and burden of locating the documents outweighs the likely probative benefits of their production (see Secretary of the Department of Immigration & Multicultural & Indigenous Affairs v Behrooz & Ors (2002) 84 SASR 453).
With the above parameters in mind, I turn to the documents sought by the appellant. Though guided by the above parameters, I confirm that I will not ignore the considerations of doing justice without regard to strict form which I have already referred to.
Notes made by the three members of the Review Committee during or in connection with the hearing
The appellant accepted the indication, by counsel for the first respondent Ms Beazley, that notes made by the three members of the Review Committee have been destroyed or at least are not in existence (177).
In any event the appellant’s purpose in seeking the notes was put as follows:
“... perhaps it might have been of importance to see to compare those notes with the actual reasons for the decision and see whether it was something that it had been accepted as 100 percent as its been presented by the secretary or it was something that – they had their own input into these reasons for the decision”
(178)
In my view there is a public interest in the notes of the committee members being immune from production. In these circumstances a claim for Public Interest Immunity would prevail over the public interest in requiring disclosure (see Cross on Evidence 6^th Aust Ed by J.D. Heydon Ch14; Australian National Airlines Commission v The Commonwealth of Australia & Ano (1975) 132 CLR 582 at 592). It is clear that the appellant wishes to investigate whether or not the notes are consistent with the final Reasons for Decision or indeed the Secretary’s draft if that is different from the final Reasons. His purpose is clearly speculative and would have no weight when put into the scales against the clear public interest in keeping such material confidential.
Draft reasons
It appears that the Secretary of the Public and Environmental Health Council had prepared a draft of the Reasons for Decision and forwarded it to the three committee members (see Exhibit A4). The appellant’s argument was that the decision had to be made only by the committee members and that it was improper for the decision to be made by the Secretary (179, 180, 183). He contended that it was therefore legitimate to inspect the draft and compare it with the final decision.
Of itself there is nothing untoward in a clerical officer of a decision making body preparing a draft decision so long as there is nothing to suggest that the decision maker has surrendered authority or responsibility for the decision (see Dale v NSW Trotting Club Ltd [1978] 1 NSWLR 551). Beyond the suggestion by the appellant, there is no evidence that there has been any usurpation of the Committee’s role by the Secretary. In my view the appellant is merely investigating a hunch. Even if the draft prepared by the Secretary is left untouched by the Review Committee it would not follow that there is an abdication of responsibility by the Committee.
Further, for reasons I have explored in relation to the notes of committee members, I consider that any drafts of the Reasons for Decision would be excluded from production on the basis of Public Interest Immunity.
The appellant here alleged that the correspondence showed a “cosy relationship” between the City of Playford, the Secretary of the Public and Environmental Health Council and the Review Committee. In particular, the City of Playford arranged lunch for the committee members and it also accommodated the hearing at its premises. Mr Tavitian said that he was not asked if the Committee could deliberate in his house and further he was not supplied with nor asked to lunch (188). It would be speculative in the extreme to characterise those matters as evidence supporting an argument of bias or discrimination against the appellant. But I pause here to indicate that it would be wise for bodies such as the Review Committee to be vigilant against giving the impression of partiality. I think that the City of Playford should not have supplied lunch to the members of the Review Committee when they were in the course of adjudicating upon a matter in which the Council was one of the adversaries. Further, though the proceedings necessarily should not be conducted with undue formality I think that the use of Christian names in the course of the hearing is undesirable. As far as organisations such as the City of Playford providing a venue for a hearing is concerned I offer no criticism other than to suggest that doing so should be canvassed with the opposing party. In all, I think some of the points made by the appellant about the relationship between the City of Playford and the Review Committee being “too cosy” are well made but not such as to undermine the process. Informality should not be confused with familiarity.
Names and addresses of complainants
The appellant argued that he should know who the complainants are and whether they are within “the vicinity of” his premises within the meaning of s3(2) of the said Act. He contended that he should be able to know whether there are actual complainants or whether the City of Playford itself has come to the conclusion that “the condition of the premises are such as to cause justifiable offence to the owner of any land in the vicinity ...”.
I agree with the second respondent’s contention about this, namely that the actuality of, or the truth of any complaint by any of the appellant’s neighbours is not a relevant consideration. It seems to me that the City of Playford itself can and should act under s15(1) and s3(2) of the said Act without any actual complaint by nearby residents. There is no requirement that there be a complainant
Further, the disclosure of such material would be protected by Public Interest Immunity.
Correspondence of the City of Elizabeth with appellant prior to amalgamation
The appellant contends that this correspondence will show no history of infestation at his premises and further it will show a history of the local council tolerating his property even given its state (200, 201).

Requiring the City of Playford to search for and disclose all the records relating to its predecessors dealings with the appellant is plainly not warranted. There is no contest that there was one past experience of what the appellant styled “rodent activity” as opposed to “rodent infestation” at his premises. Further, it is common ground that for a number of years the appellant’s premises have been in much the same condition as they were in November 2001.
I decline to require the production of this class of documents on the basis that it would be oppressive and vexatious to so require it given that there is no contest between the parties as to what the appellant claims the documents will show.
Internal communication of staff or elected members of all levels
The appellant sought to justify the production of these documents on the basis that he believed they would disclose some ulterior motive, conspiracy or bias against him in the corridors of power of the City of Playford (202). In particular, he said that behind the issue of environment and health there was a planning issue (203).
The articulation of the basis upon which the appellant seeks these documents demonstrates that he is fishing for material. There are a range of impediments to the disclosure of this sort of material ranging from privilege through vexation to irrelevance. I am content to rest my conclusion on the fact that the appellant plainly wishes to see the documents to investigate his conspiracy theory. He suggests that it is not an investigation but an endeavour to obtain documents to “strengthen” the existing evidence. But there is no existing evidence. In my view the uncovering of a conspiracy is but a “speculative possibility”.
Complaints made by the appellant to the City of Playford and action taken
The appellant’s submission here is that the swiftness of the Council’s action against him as compared with their tardiness in dealing with his complaints demonstrates that the City of Playford nurtured a “bias” against him (204). Even if the generality of this request is cured by particulars I regard these documents as obviously irrelevant.
Minutes, memos, notes and motions of Council meetings
The appellant says the purpose for which he seeks these documents is to demonstrate what is behind the decision to issue the Notice, namely planning issues. There is no suggestion in the appellant’s submission that a particular document will demonstrate this ulterior motive. Clearly the appellant hopes that the documents might show this bad motive or that they will be the foundation evidence for such an inference to be drawn.
This request is objectionably wide, constitutes “fishing”, and so has no demonstrated relevance.
Media releases
The appellant seeks copies of the media releases to demonstrate his case that “there is an ill-feeling towards me” (205). Counsel for the City of Playford told the Court that there were no media releases to produce.
The appellant did not provide any more detail which had the capacity to demonstrate that media releases, if there were any, would disclose some evidence of bias or wrong motive.
I fail to see that such documents will relevantly assist me in determining whether the Review Committee was in error in upholding the issue of the Notice.
Documents relating to the activities of the Councillors - D Ryan, I Shaw, and D MacMillan
The appellant contended that the three Councillors, and two in particular, have been stirring up “mischief within the neighbourhood” (208). In order that these documents be properly the subject of the subpoena the appellant must necessarily contend that somehow these Councillors corruptly had a hand in the issue of the Notice in the first place so that the flaw in that decision by the City of Playford permeated the supporting decision of the Review Committee. Nothing was put to me by the appellant which showed that it was likely these documents would establish any such allegation or that it was on the cards that they would materially assist the appellant in making that point.
Therefore in my view the intent in seeking the production of these documents is plainly speculative.
Internal/External instructions or directions given/received
The wording of this request is impermissibly wide, imprecise and ambiguous. The discussion about its purpose at 209, 210, demonstrates the imprecision of this request. The appellant said that these documents would disclose that what the Council could not achieve by its planning powers it hoped to achieve under the guise of health and environment. He also suggested that if the City of Playford was seriously suggesting that it is a transparent body it should waive legal professional privilege.
Counsel for the City of Playford, Ms Dohnt, submitted that apart from the documents for which legal professional privilege is claimed the documents relating to this matter have been disclosed.
I accept that. In any event I regard this request as speculative and so wide as to be vexatious.
Cost(s) payment(s) made in relation to that instruction/direction
Under this heading the appellant contended that he is entitled to production of all particulars of payments made in relation to issues concerning his property. Necessarily this includes payments made to the solicitors acting for the City of Playford.
I fail to see the relevance of the documents here sought.
Conclusion
For all the above reasons I set aside both subpoenas on the basis that they are an abuse of the process of the Court. Nothing raised by the appellant convinces me that there were any documents which were likely to have any material impact on the considerations of the Review Committee.
It remains for the appellant to articulate his challenge to the decision of the Review Committee as it stands.
I will hear the parties as to costs in relation to the subpoena argument and also as to a time to resume the hearing of the appeal.

[2003] SADC 149

10 October 2003