Y (a pseudonym) v The Secretary, Department of Communities and Justice (No 4)

[2021] NSWDC 81

District Court

New South Wales

Medium Neutral Citation:

Y (a pseudonym) v The Secretary, Department of Communities and Justice (No 4) [2021] NSWDC 81

Hearing dates:

19 March 2021

Date of orders:

24 March 2021

Decision date:

24 March 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

The appellant’s two subpoenas issued on 8 March 2021 respectively requiring the Commissioner of Police and the Department of Home Affairs to produce documents, are each set aside.

Catchwords:

CHILD CARE APPEAL – application by the Secretary, Department of Communities and Justice to set aside appellant’s subpoenas that seek production of documents – no legitimate forensic purpose identified – subpoenas oppressive and too wide – fishing – subpoenas set aside

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 94, s 105, Ch 8 Div 1A Pt 2

Uniform Civil Procedure Rules 2005, r 33.4(1), r 34.2(1)

Cases Cited:

Commissioner of Police v Hughes [2009] NSWCA 306

ICAP Australia Pty Ltd v BCG Partners (Australia) Pty Ltd [2009] NSWCA 307

Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674

Y v The Secretary, Department of Communities and Justice (No 2) [2020] NSWDC 762

Y v The Secretary, Department of Communities and Justice (No 3) [2021] NSWDC 19

Category:

Procedural rulings

Parties:

Y (Appellant father)
The Secretary, Department of Communities & Justice (First respondent)
M (Second respondent mother)
Ms D Clark, Solicitor (Direct Legal Representative of the child the subject of the appeal)

Representation:

Counsel:
In person (Appellant)
Mr M Anderson (First respondent)
No appearance (M, the second respondent mother)
Ms D Clark (Direct Legal Representative)

Solicitors:
In person (Appellant)
The Crown Solicitor (First respondent)
No appearance (M, the second respondent mother)
Ms D Clark (Direct Legal Representative)

File Number(s):

2020/30525

Publication restriction:

Non-publication order imposing restriction on publication of names and identifying details other than litigation pseudonyms: s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW)

Judgment

The proceedings

1. In this child care appeal, a further interlocutory application has arisen, this time brought by the respondent Secretary of the Department of Communities and Justice (“DoCJ”), seeking to set aside two subpoenas issued on 8 March 2021 at the request of the self-represented appellant, contentiously seeking the production of documents.

2. The previous non-publication orders made in the substantive proceedings continue to apply: Y v The Secretary, Department of Communities and Justice [2020] NSWDC 674; Y v The Secretary, Department of Communities and Justice (No 2) [2020] NSWDC 762; Y v The Secretary, Department of Communities and Justice (No 3) [2021] NSWDC 19.

3. The first subpoena, which is still pressed by the appellant, seeks that the Commissioner of Police produce details of the “Criminal history, convictions, charges, recordings, investigations, waivers, Bench sheets, COPS events, security clearances, notices and all infringement notices” relating to three named persons, the first being the Secretary of the DoCJ, the second and third persons being the allocated carers of the child who is the subject of the appeal.

4. The second subpoena, which is also still pressed by the appellant, seeks “Immigration records, Application for passports for self & children under care, partner visa applications, visa’s (sic), clearances and investigations conducted” in respect of three named persons, including “All documents relevant to current and past residency, immigration, visa and passport status” for those persons. The first-named person the subject of that subpoena is the second respondent, the appellant’s ex-wife, who has been assigned the litigation pseudonym “M”. She presently resides overseas. She has neither appeared in the appeal, nor has she taken any active part in the proceedings, although she is named as a respondent. The second and third-named persons in the second subpoena are the present husband of “M” and the child she has had with her second husband. All of those persons reside overseas.

5. Pursuant to r 33.4(1) and r 34.2(1) of the Uniform Civil Procedure Rules 2005, the Secretary seeks to set aside each of the appellant’s subpoenas on the argued grounds that each subpoena lacks a legitimate forensic purpose, is oppressive, is too wide in its terms, and is beyond the scope of the proceedings. A question has therefore arisen as to whether the subpoenas constitute what is commonly referred to as impermissible “fishing”.

6. In the course of argument, counsel for the Secretary pointed to a Practice Direction of the Children’s Court of New South Wales, which refers to the procedure for the timely issuing of subpoenas, as set out in Practice Note 5, entitled “Case Management in Care Proceedings”, and submitted that, contrary to the terms and spirit of that direction, the appellant’s subpoenas were issued late.

7. Clause 15 of that Practice Note states:

“Parties must issue subpoenas as soon as is practicable after the proceedings are commenced so that documents can be produced and inspected in a timely manner and are available for the proper preparation of the case, including submission to experts.”

8. In the course of referring to cl 15, Counsel for the Secretary pointed out that the appellant’s summons which commenced the appeal, was filed on 7 January 2020, and the present dispute over the production of documents has in effect arisen belatedly 14 months later. This is in the context where the Children’s Court proceedings, which were protracted, apparently on account of the appellant’s self-representation, took place over the course of 13 non-consecutive days between 17 December 2018 and 4 November 2019, resulting in final orders being made on 6 December 2019. Those orders led to the appellant filing his summons on 7 January 2020.

9. The hearing of the appeal from those orders was listed to commence on circuit in Newcastle on 27 October 2020. In the ensuing 9 hearing days on which the appeal was listed, the Court’s time was largely taken up with interlocutory applications variously brought by the Secretary and by the appellant. The genesis of all those applications was the appellant’s unpreparedness for the hearing on account of various factors, including the stand-out factor of his self-representation.

10. The proceedings have become needlessly complicated by the way in which the appellant has conducted himself, with the result that, thus far, none of the substantive issues calling for decision in the appeal have been determined, and a series of interlocutory applications have arisen in the matter, including a rejected application for judicial recusal. Those decisions are identified at paragraph [2] above.

11. In the course of argument, counsel for the Secretary has legitimately pointed to the statutory admonition within s 94 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“CARE Act”), which requires that care proceedings be conducted as expeditiously as possible with as few adjournments as possible having regard to the best interests of the child involved, and in a way that minimises adverse effects upon the child for so long as the proceedings remain un-finalised.

12. That admonition must of course be given great weight subject to any overriding considerations of procedural fairness. Unfortunately, in this case, that consideration of procedural fairness has influenced the prolongation of the proceedings and a timely finality to the proceedings remains elusive. That situation is a direct consequence of the lamentable circumstance of the appellant’s continued self-representation. This has in turn had an adverse impact on the human rights of the child the subject of the appeal.

13. In addition to the appellant’s self-representation, the delay incurred in finalising the present appeal is also due to the combined effect of document unavailability; some confusion occasioned by a misfiling of extraneous documents in the Children’s Court file, which is a matter that has aroused the appellant’s suspicions leading to him making various distracting allegations of nefarious conduct and malfeasance; COVID-19 issues affecting the practical facility for the appellant to inspect and copy documents in the Court’s Newcastle Registry; a relatively short delay to the hearing in Newcastle due to COVID-19 concerns that were thought to have affected the appellant but which turned out to be negative; a refused application for judicial recusal, a refused application for dismissal of the appeal without a hearing on the merits; the need to transfer the part-heard proceedings from Newcastle to Sydney because the allocated circuit sitting days in Newcastle between 26 October and 6 November 2020 proved to be insufficient to deal with the numerous interlocutory issues raised; and the continued inability of the appellant, despite the offer of assistance from the Crown Solicitor, to definitively marshal the documents he requires to present in his appeal and enable its timely disposition. The present application represents yet another unfortunate resting point on that now protracted timeline.

14. The central issue requiring determination in the substantive appeal has already been identified in the context of reasons given for the setting aside of a previous subpoena issued by the appellant: Y v The Secretary, Department of Communities and Justice (No 3) [2021] NSWDC 19, at [10], as follows:

1. The central issue in the appeal is whether there is a reasonable prospect of the child being restored into the care of her father. On that issue, the child, now aged 12, through her direct legal representative, Ms Clark, has made it abundantly clear that she does not want to be returned into the parental care of her father. Instead she has expressed the wish to remain in her present placement, where she has indicated she is happy and content.”

   15. In the present application, as was the case with the abovementioned dismissed application, the possibility of there being a legitimate forensic purpose for the appellant’s present subpoenas must be considered in terms of relevance to that central issue. The appellant bears the onus of establishing the existence of a legitimate forensic purpose.

   16. Notwithstanding the appellant’s acceptance of his need to discharge that onus, in the course of the hearing of the present application, he was on numerous occasions invited to identify a legitimate forensic purpose for each of his two subpoenas in contention: T16.6; T18.44; T21.22; T21.48; T22.5 – T22.16; T23.5; T27.8; T28.5; T29.1; T30.27 – T31.6; T32.8 – T35.46; T37.35; T41.20; T42.30; T45.20; T49.35.

   17. The appellant’s unhelpful responses to those invitations involved wide-ranging discursive content, at times delivered with aggression, vehement outbursts of emotion, which at times also included disparaging and scandalous remarks to the Court and to the legal practitioners present, where those remarks were disrespectful in tone and content, accompanied by menacing gesticulations, and where the appellant defiantly refused to cease such behaviour.

   18. In his oral presentation, the appellant has seen fit to make wide-ranging critical assertions which referred to alleged “dubious” conduct on the part of officers of DoCJ, alleged “blatant” conduct by Court Registry staff, reliance on allegedly “fake” documents by DoCJ, alleged “misleading” and “shambolic” conduct by DoCJ, alleged “departmental conspiracy”, including “vexatious” and “borderline fraudulent” conduct, and other scandalous remarks, including referring to department staff as “a batch of hooligans”, questioning the probity of the legal practitioners present, and the competency of the Court, and asserting bias without seeking recusal, and making scandalous remarks about a public figure who is unconnected with this case: T26.40.

   19. I have disregarded and overlooked the appellant’s distracting behaviour in that regard. In the course of argument, the appellant was repeatedly reminded to confine himself to addressing the issues, although it proved difficult for him to do so.

   20. The content of the appellant’s submissions, both in writing and orally, did not readily identify any legitimate forensic purpose behind his two subpoenas. In deference to his arguments, recognising that the appellant was obviously an intelligent man, but unskilled in legal advocacy, I called for a transcript to seek to identify a distillation of the essence of his arguments, for quiet consideration, undistracted by his vehement and aggressive presentation in the Court room.

   21. My review of the transcript suggests that the appellant’s arguments in defence of his subpoenas can be distilled and shortly stated as follows.

   22. As to the appellant’s subpoena issued to the Commissioner of Police, in essence, he seeks to identify the legitimate forensic purpose of the subpoena directed to the Commissioner of Police as being to enable the possibility of providing insight into the credibility, honesty and professionalism of DoCJ officials, staff, and caseworkers. He also seems to want to make background checks on the carers that have been allocated by DoCJ, whereas the underlying assumption must be that those persons have been appropriately selected, vetted and considered to be suitable.

   23. In that regard, in the case of the Secretary, it is noteworthy that at the hearing in the Children’s Court, the appellant issued a subpoena seeking the personal attendance of the Secretary to give evidence in the proceedings. That subpoena was properly set aside for the reasons given by the Children’s Court Magistrate at that time. The appellant’s subpoena directed at the Commissioner of Police appears to improperly seek to revisit that dismissed issue. The appellant’s apparent intention to attack the credibility of DoCJ personnel who gave evidence in the Children’s Court will not be materially assisted by the Commissioner of Police providing the documents sought by the appellant.

   24. As to the appellant’s subpoena issued to the Department of Home Affairs, in essence, he seeks to identify the legitimacy of his subpoena as being a means of testing the credibility of the assessments made by DoCJ in this case. In that regard, he seeks to check on the alleged criminal conduct of his ex-wife in relation to possible conduct that may have occurred overseas. It seems he takes that approach because he believes that DoCJ is running a proxy case for the restoration of the child to the second respondent “M”, the child’s mother, even though she has not actively participated in the proceedings and even though she does not seek a restoration order. Nevertheless, he seeks to establish malicious intent on the part of “M”, alleging that there is a difference between what “M” has communicated to DoCJ and what she has communicated to the Department of Home Affairs.

   25. In respect of those latter points, even if factually correct, it is difficult to see the relevance of such matters to the disposition of the issues in the appeal, where “M” does not seek an order that parental responsibility for the child be allocated to her. The appellant’s quest in that regard seems to be too remote to the issues requiring determination in the appeal.

   26. In response to the appellant’s arguments, the position maintained on behalf of the Secretary was that all the documents sought by the appellant’s subpoena addressed to the Commissioner of Police were plainly and obviously extraneous to the identified central issue in the appeal. It was submitted that the documents sought, if they existed, would not, “on the cards” and without speculation, be of material assistance to the appellant’s case in determining that central question: Commissioner of Police v Hughes [2009] NSWCA 306, at [74]; ICAP Australia Pty Ltd v BCG Partners (Australia) Pty Ltd [2009] NSWCA 307, at [9]. I accept the applicability of that submission to the present circumstances.

   27. Counsel for the Secretary also submitted that the appellant’s subpoena to the Department of Home Affairs appeared to be for an ulterior purpose in order to ascertain, for whatever purpose, the present living circumstances of his ex-wife, the mother “M”, and her new family, which have to date been kept confidential from the appellant. It was submitted this factor alone justified the setting aside of that subpoena. There is considerable force for that view, despite the appellant’s repeated denial of the factual correctness of that proposition.

   28. In considering the competing arguments, I find that the appellant has not identified a legitimate forensic purpose for either of his two subpoenas which are the subject of the present application. In my view, on their face, each subpoena constitutes a speculatively impermissible and irrelevant fishing expedition.

   29. I find that the subpoena seeking material from the Commissioner of Police has been issued on a misguided basis. The substantive appeal does not involve questions concerning the probity of the Secretary, or his delegates, including questions concerning the personal integrity of the carers appointed by the Secretary to care for the child the subject of the appeal. I find that the material sought has no relevance to the issues to be determined in the substantive appeal.

   30. In particular, it should be noted that some aspects of the subpoena to the Commissioner of Police are directed at a disclosure of the personal details of the carers for the child, a quest which is at odds with the requirements of Division 1A of Pt 2 of Chapter 8 of the CARE Act. Those legislative provisions contain statutory restrictions on information that can be disclosed regarding authorised carers. Such restrictions prevent disclosure of “high level identification information” without the consent of the carers. Counsel for the Secretary submitted, correctly in my view, that the appellant’s subpoena seeking material from the Commissioner of Police disregards the requirements of that statutory regime.

   31. In my assessment, none of the material sought by the appellant in his subpoena to the Commissioner of Police will, “on the cards”, and without speculation, be of assistance to the appellant in advancing the case he seeks to establish on appeal. I find that the material sought has no relevance to his appeal.

   32. I conclude that absent the identification of any legitimate forensic purpose for either of the appellant’s subpoenas, they are oppressive, they involve an impermissible fishing expedition, and they seek documents that are beyond the scope of the appeal.

   33. For the above reasons I order that the subpoenas issued at the appellant’s request on 8 March 2021 directing the Commissioner of Police and the Department of Home Affairs to produce the documents referred to in the respective schedules to those subpoenas, be set aside pursuant to r 33.4(1) and r 34.2(1) of the Uniform Civil Procedure Rules 2005.

   34. I order that the Secretary’s consequential application for costs be reserved for separate argument and later determination on due notice, after the substantive appeal has been concluded.

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Decision last updated: 24 March 2021