Monday, 5 March 2001
42 Although the Court sat well after the usual time for adjournment on Friday last, 2 March 2001, the judgment on the two notices of motion was still being delivered at the time of adjournment. Accordingly, when the Court completed its reasons in relation to the first of the motions with which it was dealing, the delivery of reasons was adjourned and the parties were given an outline of what the Court's decision was likely to be as to the other notice of motion. That is, the motion as to the setting aside of the summons served by the prosecutor on the defendant.
43 I now continue the delivery of the reasons for judgment. At this point it is sufficient to note that the prosecutor arranged for the issue by the Registrar on 20 December 2000 of a summons directed to the defendant for the production of certain documents set out in a schedule. The schedule is rather detailed and contains ten paragraphs. In view of subsequent developments it will not be necessary to set out the whole of the summons.
44 The defendant has made succinct but, if correct, decisive submissions in relation to the summons for production which may be summarised as follows. It is submitted that it is apparent from the prosecution brief and the terms of the summons that it is intended to be a fishing exercise in the hope that something will emerge to assist the prosecutor. Further, "the claim for documents is impossibly wide and vague and is oppressive. For example, the test of whether a document is caught by paragraph 1 is whether it is a document relating to straddle cranes in connection with one of a long series of subject matters, including any entity related to the defendant". (emphasis in original)
45 There are some other objections to which I will return after setting out the relevant parts of the summons, since they relate to specified parts of it. During the early stages of the argument, Senior Counsel for the defendant advised the Court that there was no longer any objection to paragraphs 5 to 10 of the summons, except as to paragraph 5 insofar as the date specified in it was a date earlier than any of the charges laid. It was made clear that this concession had to be seen in the context of the other motion filed by the defendant which, if successful, made the whole of summons irrelevant, with the consequence that no documents would need to be produced in relation to the summons, including those within paragraphs 5 to 10.
46 Counsel for the prosecutor advised the Court that the prosecutor had not been earlier advised of the concession made as to paragraphs 5 to 10 of the summons. It is unnecessary to set out in detail the terms of paragraph 5 since the only objection is to the date which precedes by approximately five months the period of the first charge. In the light of the earlier decision on the question of particulars where I accepted that particulars of events prior to the dates of the charge may not be irrelevant to the charge, I consider that the objection to paragraph 5 is not made out, and I therefore require the defendant to produce the documents in paragraphs 5 to 10 of the summons.
47 It is now appropriate to set out the opening words to the schedule to the summons and the paragraphs objected to, being paragraphs 1 to 4:
THESE ARE THE DOCUMENTS OR THINGS YOU MUST BRING
1) Any report, recommendation, opinion, advice, manual, guideline, file note, memorandum, minute, safety assessment, safety program, ergonomic review, vibration data, noise data, ergonomic data and/or training material (however the foregoing are described) relating to straddle cranes and/ or straddle carriers in connection with any or all of the following:
a) The defendant.
b) Any entity and/or corporation related to the defendant including but not limited to:
i) Patrick The Australian Stevedore.
ii) Patrick Stevedores Operations Pty Ltd.
iii) Patrick Stevedores Operations No. 2 Pty Ltd.
c) Manufacturers of straddle cranes and/or straddle carriers including but not limited to:
i) SISU.
ii) Beloti Container Stacker.
d) Installers of straddle cranes and/or straddle carriers including but not limited to:
i) SISU.
ii) Beloti Container Stacker.
e) Any rehabilitation provider.
f) Any safety consultant.
g) Any ergonomic consultant.
h) RMIS.
i) Re-Start Consulting.
j) Dr Rauno Paakkonen and/or the Tampere Regional Institute of Occupational Health.
k) Noel Arnold & Associates Pty Ltd.
l) Cameron Hunter.
m) Neville J Betts.
n) Freehill Hollingdale and Page including but not limited to Barry Sheriff.
o) Queensland Government - Workplace Health and Safety.
p) WorkCover Authority of New South Wales.
And the thing(s) produced shall include any original version, draft version, final version, friendly report and/or non-friendly report.
2) Any record relating to straddle cranes and/ or straddle carriers in connection with any or all of the following:
a) "Barry Sheriff spent two hours with Noel Arnolds making it as good as possible".
b) "The way forward".
c) Comments concerning any report from Noel Arnold & Associates.
3) Any record of any risk assessment, risk identification and/or review of risks relating to straddle cranes and/ or straddle carriers.
4) Any record relating to a review of industry best practices in the operation of straddle cranes and/ or straddle carriers in either or both of the following:
a) Australia.
b) The world.
48 The balance of the objections of the defendant are that the documents sought by paragraphs 1 to 4 are well beyond anything relevant to the prosecutions; that paragraph 1(b) claims documents from third parties and paragraph 2 is without meaning. I consider that the issues between the parties in this area are more theoretical than real and the Court should adopt a practical approach in an attempt to resolve what may be the real issues between the parties, provided of course that in doing so, it ensures that there is no oppression or burden visited on the defendant.
49 It is important to observe at the outset that the defendant's primary submission so far as it refers to the well-known phrases "fishing expedition" or "fishing exercise" does not suggest that the purpose of the summons is to provide to the prosecution the basis for the prosecutions. Rather, the allegation is that the "fishing expedition" is mounted because, it is said, something will emerge to assist the prosecutor. Clearly, if what the prosecutor was engaged in was a "fishing expedition" to ground its prosecutions, then there may be a case of oppression. It is not surprising, however, (provided of course that it is not truly a "fishing expedition") that a party would serve a summons for production or a subpoena duces tecum to produce something that will assist its case. After all, that is the usual purpose of the service of such process.
50 Although perhaps not precisely expressed, I consider that the clear intention of the summons is to limit, unless otherwise expressly stated, the dates of the documents sought to be produced to those within the period the subject of the charges; that is, commencing on a date approximating 26 October 1998. In that context I do not consider that there is any basis to find that the claims made by the defendant as to the documents sought in paragraphs 3 and 4 are made out.
51 As to the documents referred to in paragraph 2, although no specific claim is made in relation to that matter, I note that it relates to a firm referred to as "Noel Arnolds", which is the subject of another summons about which there is an argument which has been adjourned for hearing later this month. I therefore propose to stand over to that date the summons insofar as paragraph 2 is concerned and the notice of motion, insofar as it concerns that paragraph.
52 This leaves for consideration the much more complicated first paragraph of the summons. The prosecutor in pressing for production of all the documents set out in this paragraph relies substantially on the recent and important judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in the Right of the State of New South Wales (Police Service of New South Wales) [2000] NSWIRComm 234. I consider that the following extracts from his Honour's reasons, at paragraphs [29], [30], [32] and [33], are in point:
29 The documents and things sought by the prosecutor to be produced by the defendant have been detailed earlier. A reading of them shows that they were certainly cast in somewhat general and wide terms, including by reference to time periods of up to 15 years both before and after the commission of the alleged offence. The result is that the process of determining the apparent relevance, not that they are relevant or admissible into evidence, of the documents to a subject matter in the proceedings is made more difficult. Nevertheless, the very width of the documents may be no more than an indication of the nature and scope of the issues to be decided. After all, as Smithers J (with whom Bowen CJ and Nimmo J agreed) commented in Lucas Industries Ltd v Hewitt [1978] 45 FLR 174 at pp 188-189, "... a degree of generality in the description of the documents may according to circumstances be compatible with reasonableness ... The purpose of the process of subpoena is to facilitate the proper administration of justice between parties". It is timely also in this respect to repeat what was said by Moffitt P, with whom Hutley JA and Glass JA agreed, in National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at p 382, as follows :
It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of "discovery".
30 Another aspect of initial concern is the paucity thus far of factual material available about the issues in the case. It is in respect of those issues that the objections taken in the motion are to be determined and, in my view, it is the defendant as the moving party who has the onus to establish the grounds to set aside the summons for production: see Commissioner for Railways v Small [1938] 38 SR (NSW) 564 at p 574 and National Employers' Mutual General Association v Waind and Hill [1978] 1 NSWLR at p 381. In this regard, I adopt the approach of Sully J in Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (unreported, 10956/98 and 10969/98, 11 May 1998) in which his Honour, by reference to Finnie v Dalglish [1982] 1 NSWLR 400 and the relevant principles collected therein, said (at p 2) "that it is for the moving party to show cause why the challenged subpoena should be set aside. This is a matter of some practical importance in each of the present motions, because each motion is supported by only one brief affidavit". Similarly in the present case, the affidavit in support of the motion referred simply to "the grounds ... briefly set out in the Notice of Motion"; those grounds were stated in terms that the summons "is oppressive" and "seeks production of material for which there is no demonstrated legitimate forensic purpose". In his submissions, Mr Hastings for the defendant, as earlier outlined, based objection to the summons essentially on the width and oppressive nature of the obligation imposed. …
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32 Notwithstanding the generality and width of the call for the documents concerned, I am not satisfied, with some few exceptions, that the summons is so wide as to be oppressive in the sense of being uncertain. It cannot be said to offend the established principle that a subpoena is not to be used as a substitute for discovery because discovery is not available against a party in a criminal proceeding: see Maddison v Goldrick [1976] 1 NSWLR 651 at p 663 per Samuels JA and R v Saleam (16 NSWLR at p 19 per Hunt J). That is not to say, of course, that in criminal proceedings such as these that a summons for production could properly issue where the purpose was, as the authorities so say, a "fishing expedition"; the test still remains that, as Mr Hastings put, there must be a legitimate forensic purpose to obtain the documents, and, as Mr Crawshaw put, the documents must appear to be sufficiently relevant to an issue in the proceedings. In whatever way one may describe the test, it seems to me it comes down to a balancing exercise involving the nature of the documents sought in light of the apparent issues. In Attorney-General v Stuart (34 NSWLR at p 681), Hunt CJ at CL stated it this way :
The concept of legitimate forensic purpose is not confined to claims of public interest immunity. It arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least "on the cards" that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so: R v Saleam (16 NSWLR at pp 17-18). He is not entitled to conduct a fishing expedition. The need to show a legitimate forensic purpose arises even if the claim of public interest immunity fails. It is therefore a prerequisite before the balance required for that claim can be struck.
33 In viewing the documents sought here, I do so in light of an assessment of their apparent relevance to issues in the case as those issues may be gleaned from the charge and the particulars thereof. I do so also consistent with what I would understand to be the resources of the defendant as a large organisation and, importantly, as a party and not a stranger to these proceedings it would reasonably have knowledge of the particular expressions used in describing the documents. In that latter respect, I am attracted by the following views of Smithers J in Lucas Industries v Hewitt (45 FLR at p 189) :
Assessment of the reasonableness of burdens involved in complying with a subpoena must take account, inter alia, of the desirability that justice be administered effectively. The capacity of a party to collect and produce the documents referred to is a relevant circumstance. Large business entities may be thought to be highly organised and well staffed. What may be burdensome to lesser entities may be of small significance to a large one.
In that case, it appears from the report that a wide range of documents was sought in general terms but limited by reference to a single subject matter; with some minor exceptions, the subpoena was allowed to stand. The circumstances of the present case are not conceptually dissimilar.