Valder v State of New South Wales (No 3)
[2013] NSWSC 997
•23 July 2013
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Valder v State of New South Wales (No 3) [2013] NSWSC 997 Hearing dates: 23 July 2013 Decision date: 23 July 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Contempt motion dismissed.
Plaintiff to pay the defendant's costs.
Catchwords: CONTEMPT - whether non-compliance with subpoena - whether subpoenas were issued by any court - costs. Legislation Cited: Supreme Court Rules 1970 Cases Cited: Killen v Lane [1983] 1 NSWLR 171 Category: Interlocutory applications Parties: Valdemar Ian VALDER (Plaintiff)
State of New South Wales (Defendant)Representation: Counsel:
In person (Plaintiff)
M. Hutchings (Defendant)
Solicitors:
In person (Plaintiff)
Henry Davis York (Defendant)
File Number(s): 2012/300704
EX TEMPORE Judgment
Before me is a Notice of Motion filed by the plaintiff, Valdemar Ian Valder, seeking punishment for an alleged contempt of Court said to have been constituted by non-compliance with two subpoenas. As I will explain, there is significant doubt about whether one of the subpoenas was ever issued and, if so, which Court authorised its issue.
Background
At some point Mr Valder was charged with two offences. He was convicted in the Local Court. He appealed to the District Court. He sought leave to have the District Court receive evidence that was not adduced in the Local Court. His appeal was listed for mention before the District Court on 12 September 2012. On that day his appeal was fixed for hearing on 18 September 2012. Orders were made at the mention for him to serve his evidence upon either the Director of Public Prosecutions or at least a police prosecutor with responsibility for his appeal.
According to Mr Valder, he attempted to comply with the order by serving his evidence on a police prosecutor located at the Parramatta police station. He claims that he arrived at the police station at about 8.50am on 17 September 2012. He states that the officer who was on duty initially agreed to pass on the material to the prosecutor's office, but then refused to hand that material on. Mr Valder alleges that at the hearing on 18 September 2012 the prosecutor in the District Court denied that they had received his evidence and the appeal proceeded without the benefit of it. His convictions were confirmed and he was placed on a bond.
On 27 September 2012 Mr Valder commenced civil proceedings in the Local Court against the State of NSW for "negligence". The negligence was said to be constituted by the acts of the officer in charge at the police station for refusing to pass on his evidence to the prosecutor.
In his oral evidence before me, Mr Valder stated that on 27 September 2012 he applied to the Local Court to issue a subpoena requiring production of the CCTV footage of his attendance at the Parramatta police station. Apparently this application was refused on the basis that it was not the practice to issue subpoenas prior to the filing of a defence. It seems that Mr Valder had learned that the police proposed to erase the CCTV footage of his attendance at the police station. Mr Valder then approached this Court on the same day seeking urgent relief. Orders were made by this Court in the following terms:
"1. Mr Valder have leave to issue the subpoena the subject of this application.
2. That an order for short service be made requiring Mr Valder serve the subpoena on the defendant today both by hand and facsimile transmission."
With respect, it is not clear what is meant by the "subpoena the subject of this application" in order 1. In particular, I can see scope for misunderstanding as to whether that order was authorising the issue of a subpoena out of the Local Court or out of this Court. However on its proper construction it would be extremely unlikely that the order could be referable to a subpoena issued by the Local Court. There is a very significant doubt as to whether this Court has the power to direct the issue of a subpoena out of another Court unless it was following the completion of some formal appeal mechanism, and that application certainly was not of that kind.
I am satisfied that following that attendance Mr Valder completed a piece of paper which was in the form of a subpoena provided for in the Uniform Civil Procedure Rules 2005. It was purported to be issued in the name of the Local Court and bore the Local Court case number referable to the proceedings he had commenced in that court. In his own handwriting Mr Valder completed a return date of "Wednesday 3 October 2012 9am".
It is also clear that on 27 September 2012 Mr Valder took that piece of paper and served it on some representative of the NSW Police Service. There is, however, significant doubt as to whether or not that piece of paper was ever stamped by any court and, in that sense, "issued" by any court. There has never been produced before me a copy of that piece of paper bearing a court stamp.
In his oral evidence Mr Valder stated that he was unsure as to whether, after he attended this Court, he either travelled straight to the Parramatta police station to serve the "subpoena", or attended the Registry of this Court or the Local Court to have the "subpoena" stamped. Mr Valder conceded that it was possible that he simply went to the Parramatta police station and handed the piece of paper to them, and then later told the Local Court that this Court had ordered the issue of a subpoena. That is a course of action a layperson might mistakenly, but reasonably, have understood was comprehended by this Court's orders.
However, the end result is that I am not satisfied that the document that was served on the police was a document that satisfied Order 1 of this Court's orders of 27 September 2012. For the reasons that I have already suggested, to satisfy Order 1, in my view the document would have had to have been in the form of a subpoena issued out of this Court and returnable in this Court. It would, in the ordinary course, have borne the stamp of this Court. Equally, I am not satisfied that the document that was served on the police constituted a subpoena "issued" by the Local Court. Order 1 did not authorise that course and there is, in my view, no satisfactory evidence capable of establishing either beyond reasonable doubt, or on the balance of probabilities, that the Local Court "issued" that document.
As I have stated, the purported return date for the subpoena was 3 October 2012 in the Local Court. There was tendered a record of the Local Court indicating that on that day the return date was adjourned to 10 October 2012 and that on 10 October 2012 no documents were produced. These entries are something of a mystery in light of the circumstances in which the "subpoena" was issued. In my view they are probably best explained by the Registry of the Local Court becoming apprised of this Court's order of 27 September 2012 and receiving the document prepared by Mr Valder, then proceeding on the mistaken basis that the document should be treated as a subpoena issued by that Court. That said, there is no evidence that at any time the Local Court itself purported to "issue" an order requiring the production to it of the CCTV footage.
On 16 October 2012 Mr Valder filed an Amended Statement of Claim in the Local Court expanding his allegations of negligence to include aspects of the alleged failure to produce material in response to the "subpoena" that was purportedly returnable on 3 October 2012.
On 19 October 2012 Mr Valder filed a Notice of Motion in this Court seeking the punishment of someone for an alleged contempt in respect of the failure to produce material, and also the transfer of his substantive proceedings into this Court. On 12 December 2012 Mr Valder's substantive proceedings in the Local Court were transferred to this Court.
On 14 March 2013 Mr Valder caused to be issued a subpoena out of this Court for the production of the CCTV footage. This subpoena was returnable on 26 March 2013.
Regrettably, despite the best efforts of myself and my staff, there is not available today material concerning the course of events in relation to that subpoena. It is clear from statements by Mr Valder from the bar table that at various times he has had access to the material that was produced and, it seems, to the form of the subpoena that was returned by the defendant, however it was not tendered before me.
On 14 June 2013 the Registrar set down so much of Mr Valder's Notice of Motion filed in October 2012 that sought punishment for contempt for hearing today.
On 17 July 2013 his Honour Garling J made orders facilitating the hearing of the motion seeking punishment for contempt, including the filing of a statement of charge. The statement of charge was filed on 19 July 2013.
The motion for contempt
The statement of charge named the State of New South Wales as the party affected and identified five "counts" as follows:
"Count 1 - the police failed to return the subpoena by the first returnable date of 3 October 2012, disregarding an order of the Supreme Court of New South Wales for short service.
Count 2 - the police failed to return the subpoena by the second returnable date of 10 October 2012, disregarding an order of the Local Court and 'elected' their own returnable date of 30 October 2012.
Count 3 - the police failed to comply with the DECLARATION BY SUBPOEANA [sic] REIPIENT [sic] by not answering/not completing the page 6 of the Subpoena (1) document dated 27 September 2012. The subpoena has been issued by the Supreme Court for the proceedings in the Local Court.
Count 4 - the police failed to comply with the DECLARATION BY SUBPOEANA [sic] RECIPIENT by not answering/not completing the page 6 of the Subpoena (2) document issued by the Supreme Court of New South Wales, dated 14 March 2013 with the returnable date of 28 March 2013. The DECLARATION BY SUBPOENA RECIPIENT completed/signed by the defendant's solicitor Ms Kathy O'Neil. The subpoena has been issued by the Supreme Court for the proceedings in the Supreme Court.
Count 5 - the police substituted the original CCTV footage (the evidence in case 2012/300384) thus interfered with the administration of justice."
At the hearing of the motion I rejected evidence concerning the fifth count. This was so because I considered that that allegation traversed what had been previously notified to the Court and to the State as to what was the basis for the Notice of Motion for contempt. As it was a particularly serious allegation I regarded that as unfair. I also rejected it on the basis that I considered that the count was otherwise misconceived because, if the conduct alleged in that count was proved concerning an individual or even a group of officers, then I could see no possible basis on which the State could be vicariously liable in contempt for their actions. Implicit in that judgment was the proposition that I reject the inclusion of this count on the statement of charge. I will address the balance.
The first three counts all concern events that relate to the "subpoena" that was supposedly returnable in the Local Court on 3 October 2012. It follows from my earlier finding that any conduct that occurred in relation to that document was not conduct that was inconsistent with this Court's orders of 27 September 2012. This is so because, as I have already stated, those orders are to be properly construed as not authorising the issue of a subpoena out of the Local Court, but as only authorising the issue of a subpoena out of this Court, which did not occur.
It also follows from the findings that I have made that the document that was served upon the police was not a subpoena issued by the Local Court. Thus each of counts 1 to 3 fail at the outset because there was simply no non-compliance with an order of the Local Court, even if the occurrence of some conduct inconsistent with what was stated in the document dated 27 September 2012 could be made out.
For the sake of completeness I will also add that even if all that had been demonstrated was conduct that was inconsistent with orders of the Local Court, then the only means by which this Court could deal with a contempt arising from a non-compliance with a Local Court's orders is via the mechanism found in Pt 55 r 11(1) of the Supreme Court Rules 1970. This is, in effect, an administrative power enabling the Court of its own motion to require the commencement of proceedings for contempt (see Killen v Lane [1983] 1 NSWLR 171). That power is not one that enables a party to either commence proceedings in this Court in respect of a contempt of the Local Court, or to request that this Court commence such proceedings.
Accordingly, I reject counts 1, 2 and 3.
In relation to count 4, as I have stated, on 14 March 2013 a subpoena was issued out of the Court at the instigation of Mr Valder. The things that were required to be produced by that subpoena were the CCTV recording and a declaration by the subpoena recipient in the form of that found on page 6 of the subpoena under the heading "Declaration by Subpoena Recipient". The form of the charge alleged that what was produced did not comply with what is required by that declaration.
The importance of compliance with such a declaration should not be understated. I am not expressing any view as to whether, in a particular case, a deliberate decision by a recipient of a subpoena to refuse to produce a declaration might amount to a contempt. However, in this case, the short answer to Mr Valder's point is that there is simply no evidence that the form of the material that was produced did not include such a declaration. In part, this is an unsatisfactory position, given that there is difficulty finding the material. However, in another sense, this reflects the underlying proposition that the burden of proving a contempt is a heavy one and is one that falls on the party that makes the allegation. As I have said, Mr Valder made his allegation of contempt as far back as October 2012.
Accordingly, I reject count 4.
I dismiss the Notice of Motion filed 19 July 2013. I also dismiss prayer 1 of the Notice of Motion filed 19 October 2012.
[Parties addressed on costs.]
Mr Hutchings, for the State, has made an application for costs. He seeks costs on an indemnity basis and an order that they be payable forthwith. In so far as he seeks an order that they be paid forthwith, he does so on the basis that, even though there are substantive proceedings on foot in this Court between Mr Valder and the State, this contempt motion is a separate matter that has now been concluded.
The two matters that have concerned me in relation to the costs that have been incurred by Mr Valder's conduct are, firstly, what I consider was his understandable confusion about what was the appropriate course to take once he obtained orders from this Court in September 2012, and, secondly, that at least one of the counts appeared to fail at the outset because there has been difficulty in locating the particular subpoena packet. I am not in a position to assess how that has come about and whether any person is responsible for that.
Against those matters, it must be said that the contempt motion involved the making of very serious allegations. Even if the substance of the matters had been established, it is very unlikely that they would have led to a finding of contempt as they were mostly a simple mistake or innocent non-compliance with a Court order. It seemed to me that the motion for contempt was very much an overreaction to what Mr Valder perceived had occurred. I think in those circumstances I will order that he pay the costs of the State and that he do so forthwith. However, I am not satisfied that it is necessary to go to the further step and order costs on an indemnity basis.
Accordingly, I order the plaintiff to pay the defendant's costs of prayer 1 of the motion filed 19 October 2012 and the motion filed 19 July 2013 forthwith.
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Amendments
29 July 2013 - Substitute "were" for "are" in catchwords.
Amended paragraphs: Catchwords
Decision last updated: 29 July 2013
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