The plaintiff, who is unrepresented, has commenced separate proceedings against the Commissioner for Corrective Services ("the first defendant") seeking declaratory relief and judicial review.
The plaintiff has brought what is, in effect, an application for leave to issue a series of subpoenas, some directed to particular individuals to give evidence, others directed to the first defendant to produce documents. The requirement for leave stems from the provisions of r. 7.3 of the Uniform Civil Procedure Rules 2005 (NSW) which is in the following terms:
7.3 Issue of subpoena in certain circumstances requires leave
(1) A subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings.
(2) Leave under subrule (1) may be given either generally or in relation to a particular subpoena or subpoenas.
(3) Despite subrule (1), a subpoena may not be issued in relation to proceedings in the Small Claims Division of the Local Court, except by leave of the court, in any circumstances.
The first defendant has objected to leave being granted in relation to some (but not all) of the subpoenas the plaintiff seeks to issue. Indeed when viewed overall, the first defendant has raised limited objections. Moreover, it should be noted that counsel for the first defendant has indicated that in respect of any foreshadowed subpoena seeking the production of documents, the first defendant will not insist upon the formal issue of a subpoena by the plaintiff. Rather, in the event that I come to the view that leave should be granted, the first defendant will produce the documents in question within 14 days. The only qualification to that stated position is that the first defendant has foreshadowed a claim (or claims) for public interest immunity over some of the material sought by the plaintiff. To that extent, the first defendant has sought that he be excused from production of that material until such time as any such claim(s) are determined. That is an appropriate course in the circumstances.
Bassam Hamzy v Commissioner of Corrective Services and ors. [2017] NSWSC 183 | Case summary | Zoe
Before dealing with the specific areas of dispute, it is appropriate to make brief reference to the principles which govern a grant of leave in these circumstances.
Put simply, leave should not be given unless there is a good reason to do so. Some proper purpose for the issue of the subpoena must be established, bearing in mind that subpoenas are important steps in the litigious process. In considering a grant of leave, I must have regard to the various grounds on which a subpoena may be set aside. Those grounds include that a subpoena is oppressive, irrelevant, an abuse of process of the Court, or amounts to a fishing expedition: Samootin v Shea [2004] NSWCA 115 at [20] per Giles JA; Markisic v Commonwealth [2009] NSWSC 284 at [17]-[18] per Hislop J.
An overriding consideration in determining whether leave should be granted is that the party who seeks leave bears the onus of demonstrating that the subpoena has a legitimate forensic purpose. Whether such a purpose is demonstrated is a determination which must be made having regard to the issues in the proceedings: Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 at [52]; Wong v Sklavos [2014] FCAFC 120 at [12].
It is by reference to those general principles that I proceed to consider and determine the present application.
The first area of dispute concerns four subpoenas which the plaintiff wishes to issue to officers and employees of the first defendant, namely;
1. Peter Severin, the Commissioner;
2. Mark Wilson, the Assistant Commissioner of Security and Intelligence;
3. Scott Ryan; and
4. a Mr Garzotto.
Mr Ryan and Mr Garzotto both work at the High Risk Management Unit ("HRMU") at Goulburn, where the plaintiff is presently being held.
The plaintiff has indicated that he wishes to call Mr Severin to elicit evidence regarding (inter alia) his (Mr Severin's) construction of various statutory provisions. The particulars of other evidence sought to be adduced from Mr Severin are expressed by the plaintiff in somewhat argumentative terms. They include a stated desire to question Mr Severin about why he has adopted a "discriminatory approach" towards the plaintiff.
Mr Ryan appears to be the officer responsible for the issuing and/or removal of the plaintiff's laptop computer. The written submissions of the plaintiff do not specifically articulate the evidence which is sought to be adduced from Mr Ryan. The submissions also fail to set out why any evidence from Mr Ryan might be relevant.
The plaintiff has indicated that the evidence of Mr Garzotto is sought to "establish the reality of how difficult it is to access the OTS system" (that being the telephone/ telecommunications system which is operative within the HRMU). The plaintiff has also indicated that he wishes to ask Mr Garzotto questions about the limitations said to be placed on him (i.e. the plaintiff) in terms of the use of computers.
The written submissions of the plaintiff make reference to Mr Wilson having been called to give evidence before his Honour Judge Zahra in the District Court at a time when the plaintiff was being sentenced for various offences in respect of which he is now serving a term of imprisonment. The written submissions of the plaintiff make reference to the fact that he wishes to call Mr Wilson to adduce "evidence … about the long standing obstructions and abuses of power I have faced during Court proceedings, and the reasons for these obstructions interferences and preventions". Based on the proposed evidence of Mr Wilson, the plaintiff has indicated that he will submit that there is "a long standing practice of bad faith, bias and improper purpose" within the corrective services system.
The first defendant opposes leave being granted to issue any of these four subpoenas. Counsel for the first defendant submitted that it was clear the plaintiff wished to call these four persons to give evidence and, having done so, do little more than put allegations to each of those four persons, in the form of some kind of quasi cross-examination. It was submitted that having regard to the issues in each set of proceedings, the foreshadowed evidence of these persons lacked any forensic purpose. It was further submitted that the proposed issue of these subpoenas had all the hallmarks of a "fishing expedition", and that the plaintiff should not be given an opportunity "to fish around" and question these officers for the purpose of determining whether he in fact had a case.
A number of general observations can be made regarding the plaintiff's position in relation to these four subpoenas.
Firstly, what Mr Severin's construction of legislative provisions might be is irrelevant. To the extent that such an issue arises for consideration in these proceedings, it will be a matter for the Court to determine.
Secondly, as far as Mr Ryan is concerned, exactly what the plaintiff seeks to elicit from him can be only be described as vague.
Thirdly, as far as Mr Garzotto is concerned, the plaintiff himself will obviously be in a position to give evidence of the fact (if it be the fact) that there are difficulties with the system to which he referred.
Fourthly, as far as Mr Wilson is concerned, the relevance of the evidence sought to be adduced from him is not immediately apparent to me.
Fifthly, it can be readily anticipated that the plaintiff himself will seek to give evidence about his treatment within the Corrective Services system. As counsel for the first defendant has pointed out, if the plaintiff takes that course then that evidence will be before the Court. In the event that such evidence is admissible, plausible and uncontradicted, it may well be accepted. If it is to the contrary, it may not be. Moreover, if any such evidence is given by the plaintiff, it can be reasonably expected that it will be met by evidence from the first defendant if it is in issue. In those circumstances the plaintiff, just like any other litigant, will have the opportunity to cross-examine the deponent(s) of any affidavit(s) upon which the first defendant will rely in these respects.
The written submissions of the plaintiff give me the distinct impression that what he wishes to do by issuing subpoenas to these four officers is to call them in his own case, and then engage in some impermissible form of cross-examination of them. Whilst the plaintiff should be given every reasonable opportunity to put his case before the Court, I am not satisfied that the issue of these four subpoenas has any legitimate forensic purpose. Accordingly, the application for leave to issue those subpoenas will be refused.
The plaintiff seeks leave to issue a further ten subpoenas to inmates of custodial facilities. Nine of those persons are housed within the Corrective Services system in New South Wales (and seemingly within the HRMU). The tenth is a person who is serving a term of in imprisonment in Victoria.
The first person to whom the plaintiff wishes to issue a subpoena is Omar Jamal. The first defendant has raised no objection to leave being granted to the plaintiff to issue that subpoena. However, the first defendant has objected to leave being granted to the plaintiff to issue subpoenas to the next eight persons, namely:
1. Omar Baladjam;
2. Milad Al Ahmadzia;
3. Omar El Kotobi;
4. Peter Viousu;
5. Omarjan Azari;
6. Sameh Baydeh;
7. Raban Alou; and
8. Tamim Khaja.
The written submissions of the plaintiff set out, in general terms, the nature of the evidence that he wishes to adduce from each of these persons. Although some of the matters set out by the plaintiff in that respect tend to reflect a desire to adduce evidence which is irrelevant to any issue in the proceedings, there is what might be described as a "common theme" running through such evidence. The plaintiff will seemingly seek to draw some comparison between the treatment of those particular inmates, and the treatment of himself. Subject to what evidence is actually adduced, it seems that he will then submit to the Court that the treatment that he has received exhibits a degree of bias towards him.
The first defendant objected to leave being granted to issue subpoenas to any person with the exception of Mr Jamal. In taking that position, the first defendant was at pains to point out that this should not be taken to be a concession that anything that Mr Jamal might say is relevant. However, it should be said that at least in some respects, there would appear little to distinguish between the evidence Mr Jamal might give, and that which might be given by any of the other 8 named persons who are held at the HRMU.
The first defendant submitted that the main reason the plaintiff wished to subpoena these eight persons was to adduce evidence about their alleged mistreatment in custody. It was submitted that all of the circumstances this was not a legitimate forensic purpose for any of the subpoenas to be issued.
To a large extent, the position advanced on behalf of the first defendant would seem sound. However as I have said, there is little to distinguish the proposed evidence of Mr Jamal (in respect of whom no objection is made in opposition to a grant of leave) from that of any of the other persons to whom the plaintiff wishes to issue a subpoena.
It appears that the plaintiff wishes to draw some comparison between his position and that of other inmates. Simply because one inmate is treated in a particular way does not render different treatment of another inmate unlawful. In that respect, there is some doubt as to whether the proposed subpoenas to these eight persons have a legitimate forensic purpose. However, it is difficult to determine that question adversely to the plaintiff based on the material that I have before me. The plaintiff is, as I have said, unrepresented. It is important that he be afforded every reasonable opportunity, within the bounds of what the law will allow, to place such evidence before the Court as may be relevant to the issues in the proceedings.
I am not prepared to conclude at this stage that the entirety of the evidence which is sought to be adduced from one or more of these eight people is irrelevant. It seems to me that in all of the circumstances the appropriate course is to grant leave to the plaintiff to issue subpoenas to each of those persons. The relevance and admissibility of any evidence they might give may be something that has to be determined at the hearing.
In all of the circumstances, I propose to grant leave to the plaintiff to issue these subpoenas.
I am informed by counsel for the first defendant that some (and perhaps all) of these eight persons are the subject of a "non association direction", the effect of which is that the plaintiff is prevented from having any association with any of them. How that may impact on the preparation of the plaintiff's case remains to be seen. Such a direction would seemingly prevent the plaintiff from speaking with any of these persons prior to calling them to give evidence. The continued enforcement of that direction is a matter for the Commissioner for Corrective Services. I wish to make it clear that my determination that leave should be granted to the plaintiff to issue subpoenas to each of these persons should be construed, in any way, as an indication that I consider that the arrangements governing the plaintiff's association with any other inmate should be relaxed. That is, as I have said, a matter for the Commissioner. If these restrictions become an issue from the point of view of the plaintiff's preparation and conduct of his , it can be dealt with between now and the hearing.
The last person who is named in this group of witnesses is Kazem Hamed. Mr Hamed is serving a sentence in Victoria. The plaintiff seeks to call him, it seems, for the purposes of establishing that he has been given a laptop computer whilst an inmate in a high security correctional facility in that state. What may or may not happen in Victoria cannot possibly be of any relevance to any issue that I will have to determine in this case. Accordingly, leave will not be granted for the persons of issuing a subpoena the Mr Hamed.
The final issue concerns a subpoena which is sought to be issued by the plaintiff to the first defendant seeking the production of twenty-one separate categories of documents. Five of those categories are in issue, namely:
1. documents relating to all calls and their duration made on the OTS systems in unit 8 HRMU since November 2015 (category 1).
2. all information re lock downs and a half day lock downs since November 2015 (category 2).
3. all information relating to (a) legal bookings made via the AVL system to any inmate in HRMU and (b) replies to bookings since November 2015 (category 3).
4. a full copy of the operations and procedures manual of the Department of Corrective Services (category 4).
5. instructions to officers informing officers to tell inmates of what are referred to as new "drop in procedures" (category 5).
I should again note that in relation to some of the documents falling within these categories (as well as others about which there is no dispute) counsel for the first defendant has foreshadowed an application for public interest immunity. It is obviously open to the first defendant to make such application(s) as might be thought fit in that regard. However, that is a separate issue to whether or not leave should be granted to issue subpoenas. The fact that the first defendant may wish to claim public interest immunity over some of the documentation the plaintiff seeks to have produced is not, of itself, a reason to refuse leave.
I turn firstly to the material in category 1. The subpoena sought to be issued by the plaintiff seeks production of a number of other categories of documents relating to the same issue as he referred to in category 1. Having looked at the proposed subpoena as a whole, the material in this category and their duration through the OTS system will be sufficiently covered by the other categories of documents of which the plaintiff seeks production and to which the first defendant raises no opposition.
As to category 2, I am unable to determine the relevance of any such material.
The relevance of the material in category 3 depends upon the fact that it relates to the plaintiff. To the extent that such material might relate to other inmates, it is not relevant to any issue. Moreover, to the extent that such information does relate to the plaintiff it is covered by other categories of documents, to the production of which there is no objection.
As to category 4, parts of the material are generally available to the public. There could be no issue about the first defendant producing that material. If the first defendant wishes to make a claim for public interest immunity over the balance of the material, it is open to him to do so. That issue can be determined at a later stage, should it arise.
As to category 5, I am unable to ascertain the relevance of any of that material.
It follows that whilst I propose to grant leave to the plaintiff to issue the subpoenas, the grant of leave will not extend to categories 1 to 5. Leave will be granted to the plaintiff to issue a subpoena for production of the documents in the remaining categories emphasising, as I have noted, that the first defendant has indicated it will not press for a formal subpoena but will produce the documentation in the absence of that formality.
I propose to list these matters for hearing commencing on 30 May 2017. I will make orders facilitating the conclusions that I have expressed in this judgment, and also facilitating the preparation of the matter, as follows:
1. Leave to issue subpoenas to Peter Severin, Scott Ryan, Mark Wilson and Mr Garzotto is refused.
2. Leave to issue subpoenas to Omar Jamal, Omar Baladjam, Milad Al Ahmadzia, Omar El Koktobi. Peter Viousu, Omarjan Azari, Sameh Baydeh, Raban Alou and Tamim Khaja is granted to the plaintiff.
3. Leave to issue a subpoena to Kazem Hamed is refused.
4. Leave to issue a subpoena to the first defendant for the production of documents, save for those in categories 1 to 5 specified in these reasons, is granted, noting that the first defendant (subject to any claim for public interest immunity) will produce such documentation in the absence of the issue of a formal subpoena.
5. The first defendant is to produce to the plaintiff, and to the Court, by 5pm on 20 March 2017, all documents in respect of which the plaintiff has been granted leave to issue a subpoena, excluding those which are intended to be the subject of any claim for public interest immunity.
6. The first defendant is to file and serve any notice of motion claiming public interest immunity, and any affidavit material in support of such motion, by 24 March 2017.
7. The plaintiff is to file and serve any affidavit(s) in response to any material filed pursuant to order 6 by 31 March 2017.
8. The first defendant is to file and serve any affidavits in reply by 7 April 2017.
9. The plaintiff and the first defendant are to exchange written submissions addressing any claims for public interest immunity, along with any issue as to the plaintiff's contact with proposed witnesses, by 14 April 2017.
10. The hearing of any claim for public interest immunity, and the hearing of any application for any orders which are sought in respect of the plaintiff's contact with witnesses, is listed at 9.15am on 21 April 2017.
11. The plaintiff is to file and serve any further affidavit(s) on which he intends to rely at the final hearing by 26 April 2017.
12. The first defendant is to file and serve any affidavit(s) in response by 4 May 2017.
13. The plaintiff is to file and serve any affidavits in reply by 8 May 2017.
14. The first defendant is to file and serve a Court Book containing all pleadings, particulars and affidavits to be relied upon at the final hearing, by 12 May 2017.
15. The plaintiff is to inform the first defendant of the documents which he intends to tender in the final hearing, by 12 May 2017.
16. The first defendant is to file and serve a tender bundle containing all documents which either the plaintiff or first defendant intend to tender in the final hearing, by 15 May 2017.
17. The plaintiff and the first defendant are each to file and serve any objections to admission of the evidence sought to be adduced by the other party by 18 May 2017.
18. The plaintiff is to file and serve written submissions in chief by 22 May 2017.
19. The first defendant is to file and serve written submissions in response by 25 May 2017.
20. The plaintiff is to file and serve written submissions in reply by 29 May 2017.
21. The matter is listed for final hearing commencing 30 May 2017 with an estimated hearing time of three days plus.
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Decision last updated: 13 March 2017