Y v The Secretary, Department of Communities and Justice (No 3)

[2021] NSWDC 19

District Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

11 January, 5 & 9 February 2021

Date of orders:

18 February 2021

Decision date:

18 February 2021

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

See paragraph [21] for orders.

Catchwords:

CHILD CARE APPEAL – interlocutory application by the Secretary, Department of Communities and Justice to set aside a subpoena issued by the appellant

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29, s 88

Uniform Civil Procedure Rules 2005, r 33.4

Cases Cited:

Commissioner of Police v Hughes [2009] NSWCA 306

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

The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251

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

Category:

Consequential orders

Parties:

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

Representation:

Counsel:
Ms L Spencer (Solicitor for the first respondent/applicant, the Secretary)

Solicitors:
In person (Appellant)
The Crown Solicitor (First respondent/applicant the Secretary)
Ms D Clark (Direct Legal Representative of the child the subject of the appeal)

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

1. These reasons concern an interlocutory application for a subpoena to be set aside in a child care appeal that has become more complicated than need be the case. This is because the appellant remains self-represented and persists with a vehemently querulent stand-point in the proceedings. The factual context is apparent from two earlier interlocutory decisions in the proceedings: 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. Previous non-publication orders made in these proceedings continue to remain in force.

Notice of motion to set aside appellant’s subpoena for production of documents

2. On 16 November 2020, in the appellant’s preparation for the ultimate hearing of the appeal, which will proceed as a re-hearing of the proceedings in the Children’s Court, he has issued a subpoena seeking the production of a range of documents. The anonymised redacted content of that subpoena is as follows:

1. A copy of this subpoena.

2. All documents related to matter involving DCJ's involvement in matter related to [the child] including professional reports, assessments, communications between DCJ/FACS staff directly involved in these proceedings in unredacted form.

3. All documents related to transcripts of contact visits, rules of contact and communication with [name of agency providing care], FACS commissioned psychologists and doctors in unredacted form.

4. All documents related to child's current schooling, reports and communication between FACS and child’s school in unredacted form.

5. All documents related to JIRT and communication with Police with respect to AVO related proceedings in unredacted form.

6. All documents/notes/recordings/communication with current carer [name] and [name of carer’s partner] since August 2017 in unredacted form.

7. All documents related to background checks including criminal, WWCC of current carer and assessments done for (sic) to suitability for OOHC.

8. All documents related to FACS communication with child’s current, previous health professionals and allied health professionals including terms of retainment in unredacted form.

9. Previously subpoenaed and copied information from children’s court file.

10. Internal communication between caseworkers, managers and DG/FACS staff involved in these proceedings since August 2017.

11. Every document/recording relied upon by DCJ in this matter not submitted to court so far.

12. All documents related to external contractors such as “[redacted name of a care agency provider]”, “[redacted name of a care agency provider]”, various medical and allied health professionals.

13. All documents provided to FACS/DCJ by second respondent, including interviews, notes, communications, contact visits in unredacted form.

3. Until now, that subpoena has been left in abeyance pending a series of directions hearings and the resolution of other interlocutory matters that have arisen in the proceedings and which took priority over this subpoena issue. On 11 January 2021 the Secretary filed a notice of motion seeking to set aside the subpoena on the following grounds:

1. The plaintiff’s subpoena to produce served on 16 November 2020, be set aside generally pursuant to Pt 33 r 33.4 of the Uniform Civil Procedure Rules 2005 on the grounds that the subpoena is oppressive, too wide and lacks a legitimate forensic purpose.

2. In the alternative, the Secretary seeks to be excused from producing documents previously filed and/or tendered in Children’s Court Proceedings case number 2017/266501 and in these District Court proceedings.

3. That the plaintiff pay the Secretary’s costs of this motion.

4. Such further or other order as the Court may deem fit.

Evidence

4. The following sources of evidence were relied upon for the hearing of the motion:

1. The affidavit of Lauren Grant sworn on 27 January 2021. Ms Grant is a caseworker employed by the Department of Communities and Justice, formerly known as Department of Families and Communities Services. She has the day-to-day casework responsibility for the appellant’s daughter who is the child the subject of these proceedings;

2. The affidavit of Leanne Spencer sworn on 8 January 2021. Ms Spencer is a solicitor in the employ of the NSW Crown Solicitor who represents the Minister, the Secretary, and the Department;

3. The affidavit of the appellant sworn on 8 January 2021 (mis-described as having been filed on 8 December 2020).

Legislation

5. The appeal is subject to the procedural requirements of the Uniform Civil Procedure Rules 2005. UCPR r 33.4 provides as follows:

33.4 Setting aside or other relief

(1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.

(2) An application under subrule (1) must be made on notice to the issuing party.

(3) The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.

Consideration

6. The Secretary, who has a sufficient interest in the proceedings in terms of UCPR r 33.4(1), argues that the appellant’s subpoena lacks a legitimate forensic purpose, is oppressive and is too wide in its terms. Alternatively, the Secretary seeks to be excused from producing documents that have already been filed or tendered in the underlying Children’s Court proceedings in case number 2017/266501 and in the related proceedings in this Court on appeal from the decision of the Children’s Court.

7. For the purpose of determining the Secretary’s notice of motion and determining the fate of the appellant’s subpoena, notions of legitimate forensic purpose and relevance may be taken to involve inter-related considerations.

8. The Children’s Court proceedings under present appeal followed the removal of the appellant’s child from his care because of a risk of harm from corporal violence which, whilst acknowledged by the appellant as a factual occurrence, was downplayed and argued by the appellant to have been within the acceptable and legitimate bounds of parental discipline. Whilst opinions might differ on the appellant’s argued viewpoint, the fact remains that the appellant has been convicted of assaulting his child. He was unsuccessful in appealing that conviction. The factual basis of that conviction led the Children’s Court Magistrate to make final orders allocating parental responsibility for the child to the Minister until the child reaches the age of legal majority.

9. The child gave evidence in earlier proceedings. The evidence given in the Children’s Court will be read in the appeal, which involves a re-hearing. The child is distressed by these proceedings. She does not want to give evidence again and she does not want the appeal to succeed. She does not want to live with the appellant. The appellant does not wish to have his child give evidence in the appeal.

10. 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.

11. The legitimate forensic purpose of the appellant’s subpoena must be considered in terms of relevance to the identified central issue identified in the preceding paragraph. The appellant bears the onus of establishing the existence of a legitimate forensic purpose.

12. The appellant must establish that the production of the documents he seeks will, beyond speculation, be likely to materially and reasonably assist in the determination of the identified issues in the litigation: ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, at [9].

13. The appellant seeks access to documents in an unredacted form. This is in circumstances where s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) makes it an offence to identify anyone reporting a child to be at risk of harm. The Secretary maintains, correctly in my view, that some of the documents called for by the appellant’s subpoena are subject to that statutory privilege: The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251.

14. Bearing in mind the identified central issue to be determined in this appeal, it is plain that the very wide dragnet terms of the appellant’s subpoena must be seen to be an impermissible fishing expedition that seeks material extraneous to that central issue.

15. Plainly, those extraneous matters are related to the appellant’s vehemently expressed extreme dissatisfaction with the child’s present care placement. It seems to me that, confusedly, the appellant is seeking to make a comparison of the merits between the present care arrangements and the care that might be available if his child was in his care. In my view, that stance on the part of the appellant is a distraction from the central issue of whether there is any reasonable prospect of his child being restored to his care.

16. I consider that the dragnet for the material that the appellant seeks relates to extraneous issues that would not “on the cards” materially assist in determining that central question: Commissioner of Police v Hughes [2009] NSWCA 306, at [74].

17. In the course of argument the appellant has made oblique references to legal advice he has received which justifies the course he has taken. The interests of justice between the parties and the interests of justice generally would be better served if those proffering such advice to the appellant actually presented those arguments in court where such arguments could be examined, explored and considered for relevance and applicability to the circumstances of this case.

18. It is plain that in this case, with co-operative intent, the Secretary has gone to great lengths and expense to provide the appellant with relevant materials. A previous affidavit of Ms Spencer filed on 30 November 2020 has identified in detail, at paragraphs [120] to [124], documents that have already been provided to the appellant. In addition, Ms Spencer’s affidavit of 8 January 2021, at paragraphs [21], [22] and [24], identifies considerable material that has already been provided to the appellant. Paragraph [23] of that affidavit confirms that numerous bundles of documents have already been provided to the parties. The appellant has not shown any justification for those efforts to be duplicated yet again. An order having the effect of requiring the Secretary to do so would be oppressive and inappropriate. I decline to make such an order.

Conclusion and determination

19. The Secretary has succeeded in demonstrating that the appellant’s subpoena seeking the production of the documents identified at paragraph [2] above, lacks legitimate forensic purpose relevant to the central issue to be decided in this case, is too wide in its terms, and is unnecessarily oppressive because it requires production of documents already served on the appellant. It follows that subpoena must be set aside: UCPR r 33.4(1).

Costs

20. The Secretary, and Ms Clark in her capacity as the child’s direct legal representative who is funded by Legal Aid, reserved the right to argue for an order for costs in the event the appellant’s subpoena is set aside. An order for costs cannot be made in care proceedings unless exceptional circumstances can be shown to exist that would justify such an order: s 88 of the Children and Young Persons (Care and Protection) Act 1998. As the appellant is self-represented I reserve the question of costs to be argued at the conclusion of the substantive appeal.

Orders

21. I make the following orders:

1. The notice of motion filed by the Secretary, Department of Communities and Justice on 11 January 2021, is upheld and the subpoena issued by the appellant on 16 November 2020, as identified in paragraph [2] above is set aside;

2. A further directions hearing is appointed for 10.00am on Friday 12 March 2021 in Sydney for the purpose of superintending the efforts of the parties to achieve a state of readiness for the hearing of the substantive appeal;

3. Liberty to apply if further or other orders are required.

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Decision last updated: 18 February 2021