Walsh v Mulherin

[2005] NSWSC 1089

CITATION:	Walsh v Mulherin [2005] NSWSC 1089
HEARING DATE(S):	25 October 2005
JUDGMENT DATE :	1 November 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS:	No appeal to Supreme Court from Part 15A proceedings - relevant considerations for the granting of leave to appeal - decision on matters of practice and procedure.
LEGISLATION CITED:	Crimes Act 1900, Part 15A Local Courts Act 1982, ss73, 74
PARTIES:	Anthony Walsh (Plaintiff) Pamela Mulherin (Defendant)
FILE NUMBER(S):	SC 13755/05
COUNSEL:	Mr D Morgan (Plaintiff) Mr D Pullinger (Defendant)
SOLICITORS:	Beilby Poulden Costello (Plaintiff) Barkus Edwards Doolan (Defendant)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	1051/05
LOWER COURT JUDICIAL OFFICER :	Sweeney LCM

- 6 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

1 November 2005

13755 of 2005 Anthony Michael Walsh v Pamela Mulherin

JUDGMENT

1 His Honour: The plaintiff is a defendant in the Local Court. The parties had lived in a de facto relationship. The proceedings were brought by the defendant to obtain an apprehended violence order against the plaintiff (it is a complaint brought pursuant to Part 15A of the Crimes Act 1900).

2 The defendant’s solicitors issued a subpoena. It was directed to a psychiatrist (Dr Bruce Westmore). He has treated the plaintiff.

3 The subpoena sought the production of the following:-

Originals and copies of all clinical notes, memoranda, patient treatment notes, patient treatment cards, documents, correspondence, file notes, diary notes, documents, records and writings relating to your consultations with, reports upon and treatment of ANTHONY MICHAEL WALSH, date of birth 18 September 1958, for the period 1 January 1997 to 30 June 2005.

4 The subpoena came before Sweeney LCM on 15 August 2005. On that day, the plaintiff applied to have the subpoena set aside (upon the ground that it constituted an abuse of process).

5 The Magistrate received evidence and heard argument on the question. She made findings.

6 One of the matters argued was the question of relevance. The Magistrate expressed the view that the records of Dr Westmore could well contain material relevant to the proceedings. The Magistrate was also satisfied that it was not merely a fishing expedition.

7 The transcript records her decision as:-

The application is set aside, the subpoena is refused.

8 Upon the making of that decision, the Magistrate was informed that an appeal was to be brought against the decision.

9 The decision was taken to be of the effect that the Magistrate had dismissed the application to set aside the subpoena.

10 On 19 August 2005, the plaintiff filed a summons in this court. The purport of the summons is to challenge the decision. The plaintiff proceeded on an amended summons filed in court on the day of its hearing (25 October 2005).

11 The grounds of appeal are as follows:-

3. It was not open to the learned Magistrate on the evidence, or alternatively was against the weight of the evidence to conclude and so find that the issue of the subpoena was not an abuse of process upon the grounds stated in the application before the court below
4. The learned Magistrate misdirected herself in determining whether the subpoena was liable to be set aside.

12 The plaintiff seeks relief that was formerly provided by s69 of the Local Courts (Civil Claims) Act 1970 and is now conferred by Part 7 of the Local Courts Act 1982 (the Act). Part 7 concerns the civil jurisdiction of the Local Court (involving proceedings in both the General Division and the Small Claims Division). The jurisdiction had by the Local Court in relation to civil claims may be found in, inter alia, s65 of the Act.

13 The rights of appeal from a judgment of order of the Local Court sitting in either of the General Division or the Small Claims Division are set forth in ss73 and 74 of the Act.

14 One of the rights of appeal from a judgment or order in the General Division is an appeal as of right where there has been error in point of law. In the case of an interlocutory judgment or order, such a right is only maintainable by way of leave of this court. It is said that the proceedings fall within these categories.

15 At the commencement of the hearing, the defendant foreshadowed a threshold question. It was the first matter argued by the parties.

16 The defendant contended that the Act did not provide any right of appeal to this court in the present case. It was said that the proceedings which are presently before the Local Court do not fall within the jurisdiction of the General Division of that Court. It was said that any appeal from Part 15A proceedings has to be brought to the District Court (a de novo appeal brought pursuant to s562WA of the Crimes Act 1900).

17 In my view, the submissions made by the defendant are well founded. The rights of appeal provided by ss73 and 74 of the Act are not available to parties involved in proceedings pursuant to Part 15A of the Crimes Act.

18 Whilst what has just been said suffices to dispose of this appeal, I shall briefly address the other matters that were argued by the parties.

19 I shall deal with them on the assumption that the appeal did lie to this court. It can be seen from a brief canvassing of these matters that these proceedings were misconceived.

20 The court has a discretionary power to grant leave. It is exercised having regard to the relevant circumstances of the particular case before the court and so that the dictates of justice are best served.

21 In written submissions, the plaintiff, inter alia, submitted the following:-

9. The courts have been properly determined to prevent any abuse of the process, including fishing, and this can be seen from the decisions concerning the setting aside of subpoena. The law was stated clearly in Small v Commissioner for Railways (1938) 38 SR (NSW) 564 which the court shall be referred to by the plaintiff.
10. Further, whilst not perhaps grounding an application to set aside the subpoena, rather grounding an application for a direction that the plaintiff’s records not be adduced in the proceedings, it is material in the plaintiff’s submission that the only documents sought by the subpoena attract a “professional confidential relationship privilege” under Part 3.10, Division 1A, of the Evidence Act 1995 .
11. The courts, it is submitted, ought take a fairly careful approach to determining an application to set aside a subpoena when the subject of the subpoena is plainly of a prima facie privileged, private, confidential and/or sensitive nature as opposed to general non-privileged, non-confidential documents or correspondence.

22 The fact that the decision of the Magistrate concerns a matter of practice or procedure is a relevant consideration. The legislature has entrusted the Local Court with jurisdiction concerning such matters and can be regarded as having done so because that Court is regarded as competent to deal with those matters. Generally speaking, the approach of this court is to refrain from disturbing decisions of the Local Court on matters of practice and procedure.

23 The purpose of the civil jurisdiction of the Local Court is to process smaller claims (including those which are under $10,000 and dealt with in the Small Claims Division). The legislative intention is to have those claims dealt with finally and as cheaply and expeditiously as is possible. This cannot be effected where appeals are brought against decisions on matters of practice and procedure prior to the final disposition of the proceedings.

24 In this case, it may be that the plaintiff could have approached what it saw as a problem in a different way. He could have produced the documents and made any claim of privilege that he may have at that stage. The plaintiff may have also sought restrictions as to inspection of the produced documents.

25 In any event, that it can be seen that no novel question of law is involved and there is no public interest component.

26 I shall now turn to the grounds of appeal relied on in the amended summons. In my view, it was reasonably open to the Magistrate to dismiss the application. Matters of weight of evidence do not give rise to error in point of law. No alleged misdirection was ever identified.

27 The Magistrate made findings on the evidence that was placed before her. Clearly, the psychiatric condition of the plaintiff may be of relevance to the proceedings brought pursuant to Part 15A of the Crimes Act. This was conceded during the hearing in this court. Whilst the principal submission was said to be error in not finding that the issue of the subpoena constituted a fishing expedition, the substance of the complaint appeared to go more to a matter of oppressiveness (concerning the volume of material that the subpoena required to be produced). Oppressiveness was not an issue canvassed before the Magistrate.

28 Even if there had been an appeal to this court, I would not have been satisfied that there was any error, let alone any error in point of law on the part of the Magistrate. In such circumstances, it would have been futile to grant leave.

29 The summons is dismissed. The plaintiff is to pay the costs of the summons.

**********