Niass v State of New South Wales

The subpoena

1. It is necessary to set out the full gamut of the subpoena as some of the arguments suggest that documents responsive have already been produced in response to other paragraphs of the subpoena: "1. The employment files of Mr Clive Bran [sic], Dr/Mr Munger and Mr Vardanegar [sic], officers employed at Daruk Training School; 2. Copies of all Daruk Training School staff notices, practices and procedure books in the year 1981 relating to the manner in which staff are to undertake their duties and the reporting of allegations of abuse; 3. Copies of all complaints received by you at any time in relation to allegations of sexual abuse by Mr Clive Bran [sic], Dr/Mr Munger and Mr Vardanegar [sic]; 4. Copies of all complaints received by you in relation to the physical abuse of children at Daruk Training School; 5. Copies of all risk assessments undertaken by you in relation to the suitability of Mr Clive Bran [sic], Dr/Mr Munger and Mr Vardanegar [sic] to work with children; 6. Copies of any reports of inappropriate behaviour of Mr Clive Bran [sic], Dr/Mr Munger and Mr Vardanegar [sic] prior to 1981; 7. Copies of any notifications or investigations in relation to investigations or internal communications reports in relation Mr Clive Bran [sic], Dr/Mr Munger and Mr Vardanegar [sic]; 8. Copies of any reports contained in the sexual malpractice files for allegations of abuse by Mr Clive Bran [sic], Dr/Mr Munger and Mr Vardanegar [sic]; and 9. Copies of all notifications sent to the NSW Police in relation to reports of allegations of abuse by Mr Clive Bran [sic], Dr/Mr Munger and Mr Vardanegar [sic]."
2. On agreement paragraph 7 has been redrafted to seek: "… copies of all complaints sent to the NSW Ombudsman for investigations pursuant to Section 31 of the Ombudsman Act in relation to Mr Clive Bran [sic], Dr Monger or Munger and Mr Vardanega." and paragraph 9 has been redrafted to seek: "All notifications sent to the New South Wales Police in the last five years for persons who were allegedly abused by Mr Clive Brand, Dr/Mr Monger or Munger and Mr Vardanega"

Principles and Authority

1. Rule 33.4 of the UCPR provides that 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, provided that notice is given to the issuing party.
2. When an issue has been raised about the production of documents the party seeking production of documents must identify a legitimate forensic purpose for which the access is sought; R v Saleam [1999] NSWCCA 86 at [11] per Simpson J (Spigelman CJ and Studdert J agreeing).
3. Recently the principles associated with the question of legitimate forensic purpose were usefully summarised by Ward CJ in Equity in Rinehart v Rinehart [2018] NSWSC 1102 at [43]-[48] and [51]: "[43] As to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose: '… it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will.' [44] Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]): '… the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise.' [45] In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have "a sufficient apparent connection to justify their production or inspection" (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for "could possibly throw light on the issues in the main case" (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306). [46] More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]). [47] Whether the formulation of the test in civil proceedings is best expressed as an "on the cards" test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could "possibly throw light on" an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]"), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA). [48] Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a "fishing expedition", in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said: 'A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere "fishing expedition".' … [51] It is well recognised that a subpoena may be set aside as an abuse of process where it is used as a substitute for discovery or discovery against a third party (see Associated Dominions Assurance; Commissioner for Railways v Small (1938) 38 SR (NSW) 564; (1938) 55 WN (NSW) 215; National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382 (Moffitt P, with whom Hutley and Glass JJA agreed))."
4. Ward CJ in Equity again collected and distilled relevant authorities in Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620: "[36] As I explained in Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 (Broadway Plaza) (at [49]-[59]), there must be a legitimate forensic purpose for a subpoena or notice to produce in that the documents sought must be relevant and must have a sufficient apparent connection to the issues in the case to justify their production (or, put differently, it must be able to be concluded that they could possibly throw light on the issues in the case) (see Lindsay-Owen v HWL Ebsworth Lawyers [2017] NSWSC 1692 at [24] per Rothman J). It is not, however, sufficient merely to show that the documents sought are, or may be, relevant to an issue for decision; rather, it must be shown that it is likely that the documents will materially assist on an identified issue or that there is a reasonable basis, beyond speculation, that it is likely that they will materially assist (see Cohen v Morgans [2019] NSWSC 608 at [63]). This must be determined by reference to the issues in the proceeding (see Broadway Plaza at [52]; see also Rinehart v Rinehart [2018] NSWSC 1102 at [47]). [37] The documents sought must be identified with "reasonable particularity" (cf the process involved in disclosure of documents more generally (see One.Tel Ltd (in liq) - Sing Tel Optus Pty Ltd v Weston [2010] NSWSC 1491 (One.Tel) at [39]-[41]; and Broadway Plaza at [51]). [38] Relevantly for present purposes, having regard to the complaints here raised, a subpoena or notice to produce will be objectionable if it is being used as part of a "fishing expedition" (see One.Tel at [32]). As I have noted in the past, a useful explanation of what constitutes a "fishing expedition" is that given by Owen J in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 (at 254), namely, that it is where a party has no evidence that "fish of a particular kind are in a pool [but] desires to be at liberty to drag it for the purpose of finding out whether there are any there or not". Both parties have invoked this metaphor in their submissions on the present application. [39] Objection may also be taken to a subpoena (or notice to produce) on the basis that it is oppressive in scope or content (see Jordan CJ, with whom Davidson and Owen JJ agreed, in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573-4; 55 WN (NSW) 215 (Commissioner for Railways v Small); Australian Competition and Consumer Commission v Shell Co of Australia Ltd [1999] FCA 212; (1999) 161 ALR 686 at [53] per Cooper J). Further, as the Judgment Debtors have noted in their submissions, a subpoena that, on its face, solely seeks privileged material may be said to be improper (the Judgment Debtors there citing Registrar, Court of Appeal v Craven (No 1) (1994) 126 ALR 668 at 699 per Meagher JA; Shire of Katanning v Bride [2016] WASC 118 at [31]-[34] per Tottle J). [40] As a procedural matter, it is relevant to note that a party to whom a subpoena is not addressed (here, the Judgment Debtors) can object to the subpoena on the basis that it requires a third party to produce documents that are subject to client legal privilege (see Hancock v Rinehart [2016] NSWSC 12 at [26] per Brereton J, as his Honour then was). [41] Finally, I note authority for the proposition that where a subpoena is deficiently drafted, it is not for the court to redraft the subpoena (see Sydney Refractive Surgery Centre Pty Ltd v Beaumont [2003] NSWSC 688 at [32] per Simpson J; Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 at [25] per Basten JA; Rinehart v Rinehart [2019] NSWSC 759 at [38])."
5. A subpoena seeking discovery or further discovery from a party may be set aside as an abuse of process; Commissioner for Railways v Small (1938) 38 SR (NSW) 564; National Employers' Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372.
6. A subpoena may be set aside on the basis that it is unduly burdensome if the width of the categories requested is too broad or the categories are not described with adequate specificity; Commissioner for Railways v Small (1938) 38 SR (NSW) 564.

The evidence

1. The applicant defendant relied upon an affidavit of Edward Gilson affirmed 17 March 2020. Mr Gilson is the solicitor with conduct of the proceedings. His affidavit deals with (and appends) the series of correspondence between the parties attempting to narrow the areas for dispute in the subpoena.
2. The tone and content of all of this correspondence was constructive and courteous, even on the areas where there was disagreement. There was clearly genuine focus by both sides on their obligations under s 56 Civil Procedure Act and it was only when the discussions appeared to be exhausted that the notice of motion was filed in March 2020, some months after the subpoena was first returnable. This was an appropriate approach.
3. The applicant also read an affidavit of Michael King, Principal Records Manager at the Department of Communities and Justice. This affidavit provided a thorough account of searches made in response to the subpoena as well as other wider indexing, reindexing and database organisation being undertaken. Also deposed to in the affidavit was the potential time, resources and costs associated with the additional searches that would be required to respond to, in particular, the re-drafted paragraphs 3 and 9 of the subpoena.
4. I interpolate here that whilst I accept that the time and costs associated would be quite substantial, I am not of the view that this alone disentitles the plaintiff to the material sought. There are however other problems with the width and description of the documents sought, a subject to which I will return.
5. The applicant also relied upon three extracts from the personnel files of two of the three named alleged perpetrators to illustrate that the personnel files could not be said to not contain complaints made about those employees. These extracts were tendered in response to a submission made by Ms Balendra that other documents available suggested that unsubstantiated complaints were removed from personnel files.
6. The respondent plaintiff relied upon two affidavits of his solicitor Melinda Griffiths dated 1 April and 27 May 2020. The first affidavit explains some background matters and clarifies the bases and relevance of the documents sought. The second raised reliance upon an extract from Volume V of the Royal Commission into the NSW Police Service Final Report apparently dealing with employees of the Department of Juvenile Justice ("Juvenile Justice") as it was then known. Ms Balendra explained the relevance of this document is that on her understanding, the three alleged perpetrators were employees of Juvenile Justice, (although this was not stated in the affidavit material tendered). The extract was titled "Screening and Discipline of Employees" and under the heading "Disciplinary Proceedings" the following is stated: "…under the current system shared with DCS (presumably a reference to the Department of Corrective Services) … if an officer is found not guilty of a disciplinary charge, the alleged breach is not recorded in any official record and all information concerning the matter must be removed from official files and destroyed." [1]
7. This was explained by Ms Balendra to be relevant to her submission that not all complaint material would be confined to personnel files of the three alleged perpetrators and therefore there is a need to search for it in other places, and thus there is justification for pressing for the searches required by paragraph 3 to be made.

Paragraph 3: Copies of all complaints received by you at any time in relation to allegations of sexual abuse by Mr Clive Brand, Dr/Mr Munger and Mr Vardanega

(i) Submissions

1. Mr Newton submitted that there are a number of problems with this call. First, the documents sought are unconfined as to time and therefore their relevance and whether there is a proper forensic purpose to which they could be directed, remains unidentified and unable to be properly ascertained.
2. The argument mounted by Ms Balendra that evidence regarding complaints could be admissible in the proceedings as tendency evidence is not made out. Evidence of a complaint is not evidence of a tendency of any or all of the three alleged abusers to abuse children. The only possible use the plaintiff could make of a complaint is to contact the complainant and seek to obtain evidence from that complainant as to the events the subject of the complaint to provide evidence of the alleged tendency. This has two problems: the first is that this would be a classic fishing expedition and second, it would be a gross breach of the complainant's privacy. In any event, Ms Balendra has made it clear that the plaintiff does not seek the names and identities of the complainants and is content for that to be de-identified.
3. Second, given that the defendant has already produced the employment files for the named alleged perpetrators, it is likely that relevant documents have already been produced.
4. Third, the width of the subpoena means that documents irrelevant to the cause of action would be included and the scope for potential searches is enormous as set out in Mr King's affidavit. The oppressive scope of the category of documents sought alone justifies it being set aside.
5. Ms Balendra submitted that the material sought is relevant to pleadings in the statement of claim as to systemic failures on the part of the defendant set out in the particulars of negligence in the statement of claim: "(i) Placed the Plaintiff in an environment where it knew or ought to have known that the Plaintiff would be subject to physical, sexual and psychological abuse. (ii) Unreasonably exposed the Plaintiff to the risk of physical, sexual and psychological abuse, which it knew or ought to have known, existed within the Institutions. (iii) Failed to take any, or any reasonable steps, to determine whether there was a risk of sexual, physical and/or psychological abuse at the Institutions. (iv) Failed to remove the Plaintiff from the Institutions as soon as practicably, after becoming aware of the risk that he might be exposed to physical, sexual and/or psychological abuse, or at all. (v) Failed to prevent the Plaintiff from suffering physical, sexual and/or psychological abuse during the period of his residence at the Institutions; (vi) Failed to implement a system whereby complaints could be made or information could be provided regarding the abusive behaviour of the employees, servants and/or agents of the Minister. (vii) Failed to act on information, complaints and/or suspicions that acts of physical, sexual and/or psychological abuse were occurring within the Institutions. (viii) Failed to implement an effective system of monitoring, inspecting and/or reporting on instances of physical, sexual and/or psychological abuse at the Institutions. (ix) Failed to inspect or properly inspect the Institutions and/or have any reporting framework to appropriate on officers within the Ministry of Child Welfare, or to any other authority of any instances of complaints, suspicions or beliefs of physical, sexual and/or psychological abuse at the institution."
6. Ms Balendra argued that there was a lack of documentation in the employment files already produced about known abuse of other children during the same period that the plaintiff was at Daruk. This absence is relevant and justifies the further searches associated with finding the documents that would respond to paragraph 3. Further, the plaintiff's abuse occurred in circumstances where the defendant knew or ought to have known that the abuse was occurring and so documents showing it occurred to others is relevant. The documents can be used as evidence of the failures in the system of monitoring, inspecting or investigating any complaints and can show the manner in which such systems were implemented and operated.
7. The material can also be tendered under the tendency rule (s 97 Evidence Act 1995 (NSW)) as evidence of similar events, corroborating the likelihood of the assaults upon the plaintiff having occurred.

ii) Determination of the objection to paragraph 3

1. In my view Mr Newton's arguments are correct. The description of the material sought is broader than the forensic purpose articulated by Ms Balendra. It is impermissibly wide.
2. Second, whilst evidence in the nature of tendency evidence can be admissible in civil proceedings, it is only if the requirements of s 97 of the Evidence Act are met. Section 97 provides: 97 The tendency rule (1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless - (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (Emphasis added).
3. I accept Mr Newton's submission that evidence of complaints would not be sufficient to meet the test under s 97 and so the forensic purpose articulated does not have the necessary legitimacy.
4. The width of the description "all complaints received by you at any time" is not sufficiently limited to documents that could have a bearing on questions of knowledge and the factual matrix that could underpin a case for vicarious liability for the illegal acts of the identified assailants.
5. I do not consider the time and costs associated with the searching for the material to be determinative of oppression, but the paragraph fails because a legitimate forensic purpose has not been identified in that the category is not appropriately circumscribed to correspond to the purpose stated.

Paragraph 7: Copies of all complaints sent to the New South Wales Ombudsman for investigation pursuant to s 31 of the Ombudsman Act

i) Submissions

1. Mr Newton argued that the category is confusing as s 31 of the Ombudsman Act relates to special reports by the Ombudsman to the presiding officer of each house of Parliament. To the extent that the plaintiff is seeking that the state produce documents on behalf of the Ombudsman the subpoena should be set aside pursuant to s 35 of the Ombudsman Act as the Ombudsman cannot be compelled to produce any document.
2. To the extent that the subpoena seeks documents within the Department's files concerning complaints to the Ombudsman, made for example, pursuant to s 12 of the Ombudsman Act, then the category should nevertheless be set aside. As Mr King explained in his affidavit at [26]-[27], any records relating to complaints to the Ombudsman while an alleged perpetrator was employed, would be contained within his employment file which has been produced. If it related to a complaint made in a period after the alleged perpetrator had ceased to be employed, then for the same reasons identified and argued in relation to paragraphs 3 and 9, production of those documents would be oppressive and lacking in a legitimate forensic purpose.
3. Ms Balendra argued that the subpoena was directed to Family and Community Services and not the Ombudsman and so the objections articulated by Mr Newton have no basis. Ms Balendra however properly conceded during an exchange with the Court in argument that it may well be that the drafting of paragraph 7 was based on a misunderstanding of the type of material that may be in the possession of the defendant, and that paragraph 7 probably needed to be redrafted. An adjournment of that part of the argument was proposed by Ms Balendra to allow that to occur.
4. Mr Newton opposed that course, submitting that there had been ample time to clarify the categories of documents sought, and with that process now exhausted the issues are listed for argument and determination by the Court should proceed.

ii) Determination of the objection to paragraph 7

1. In my view paragraph 7 should be set aside. A good deal of latitude and collegial cooperation had been extended to allow negotiation between the parties to amend paragraph 7 of the subpoena but a line must be drawn. The defendant's notice of motion and supportive written submissions argue that paragraph 7 is confusing and should be set aside. I agree. Whilst there may have been some material on the defendant's files that was sent to the Ombudsman that led to a report being prepared by the Ombudsman pursuant to s 31 of the Ombudsman Act, which was then in turn circulated to Parliament and perhaps other places, that is not what is sought by the wording of paragraph 7. What is articulated is confused and confusing and paragraph 7 must be set aside.
2. In terms of any adjournment, as stated by Ward CJ in Equity in Xinfeng, it is not for the court to redraft a subpoena where it has been deficiently drafted. Issue was joined, and submissions explaining why were exchanged, yet the plaintiff pressed paragraph 7 as worded. It is, at best, a fishing expedition, and must be set aside.

Paragraph 9: All notifications sent to New South Wales police in the last five years for persons who were allegedly abused by Mr Clive Brand, Dr/Mr Munger or Mr Vardanega

i) Submissions

1. Mr Newton repeats the submissions he made in respect of paragraph 3 of the subpoena regarding both the oppressive nature of the searches that would be required to be made and the lack of an appropriately identified legitimate forensic purpose.
2. Ms Balendra submitted that the material sought is not oppressive and that the defendant ought not to be able to raise, as an objection to complying with the subpoena, that it has not maintained and implemented proper record-keeping that would allow the identification and production of the documents sought.

ii) Determination of the objection to paragraph 9

1. I agree with Ms Balendra's submission to an extent. Difficulty and costs associated with even lengthy searching for records responsive to an appropriately worded subpoena is not a ground to set aside paragraph 9 or paragraph 3 of the subpoena. Whilst I am satisfied that Mr King's evidence is thorough and detailed and carefully considered, and I do not doubt the legitimacy of any of the time and costs estimates he gives as likely to be associated with the type of searches that would be required, this does not cause me to conclude that the extent of those costs and that time on its own results in those paragraphs being objectionable as oppressive and/or an abuse of process.
2. The problem with paragraph 9 is the same as that which exists for paragraph 3; that is, there is no legitimate forensic purpose identified for the width of the documents potentially caught by the wording of paragraph 9.

Costs

1. Given that the defendant has been successful in its notice of motion, costs should follow the event, and the plaintiff should pay the defendant's costs of the notice of motion.

Orders 1. Paragraphs 3, 7 and 9 of the subpoena (as modified by agreement between the parties) issued by the plaintiff upon Family and Community Services on 20 September 2019 are set aside. 2. The plaintiff is to pay the defendant's costs of and associated with the notice of motion. 3. The proceedings are to be included in the Sexual Assault Case Management list conducted by Garling J. 4. The proceedings are listed for directions before Garling J in that list on Friday 26 June 2020.

Endnote

1. New South Wales, Royal Commission into the NSW Police Service, Final Report, Volume V: The Paedophile Inquiry, (1997) at 1038.

Amendments 10 June 2020 - Amendment due to typographic error on cover page (date of orders). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2020