Application for leave to issue subpoena to first respondent
17 Mr Pauga seeks leave to issue a subpoena to produce documents to the Chief Executive of Queensland Corrective Services.
18 There are six categories of documents that are sought by way of the proposed subpoena and I will come to those categories shortly. The submissions that were advanced to support the application for the subpoena at various times advanced the proposition that it was appropriate to seek the documents by reason of the content of the affidavit of Mr Brayshaw that has been deposed to on behalf of the first respondent in answer to the substantive application. It was repeatedly characterised as an affidavit which was inappropriate in some way because of its failure to comprehensively deal with the full chronology of circumstances relating to the manner in which the applicant has been held in detention. I do not accept the submissions to that effect.
19 As I have noted, the application for substantive relief proceeds by reference to case management directions which, ultimately, have resulted in the case for Mr Pauga being formulated by way of 20 pages of written submissions. By direction, the nature of the case to be advanced was to be articulated in those submissions, and they take effect as the grounds to be relied upon. Significantly, the matters put in those submissions focus upon the manner in which extradition proceedings were conducted by magistrates, the steps taken by those magistrates and the orders by way of remand and other directions that were made by those magistrates.
20 It is not the case, in my view, that the first respondent had an obligation in answering the case as articulated, to produce a comprehensive set of all of the records and a full chronological explanation including (as was suggested in submissions for Mr Pauga) the identity of each person who was involved in each step that was taken by way of receiving Mr Pauga into custody, dealing with Mr Pauga in custody and arranging for his attendance at various times before the magistrates.
21 So the primary foundation upon which the application for the subpoena is brought is not established. Therefore, I deal with this application by reference to the case as articulated in the written submissions which disclose the arguable basis upon which there is alleged to be invalidity in instruments and actions taken by magistrates that are said to support the detention of Mr Pauga.
22 I note that the affidavit of Mr Finlayson relied upon in support of the application describes in the most general terms the reason for the application. It is said that there was material produced and tendered in evidence in the Supreme Court of Queensland and that neither that material nor other documents have been put before the Court by the respondents. This means that there is available, and have been available, to Mr Pauga for the purposes of articulating his case, access to those documents. So it cannot be said that there was unavailable to Mr Pauga the necessary documents that might be used to formulate his case. There is no point being taken here about the use of those documents for the purposes of these proceedings, being as they are, related to the same subject matter as the proceedings in the Supreme Court of Queensland. There is no suggestion that consent is not forthcoming to allow the use of the documents for that purpose. Indeed, what has been suggested in submissions by Mr Pauga is not that the documents cannot be reused, but rather, that they are incomplete in some way. So what the affidavit of Mr Finlayson goes on to say is that in order to put before the Court a comprehensive record of the applicant's detention and movements for the purpose of the inquiry on habeas corpus and for the purpose of putting before the Court the materials for the purpose of the jurisdictional issues, whether the expedition proceedings were conducted according to law, the applicant seeks the documents.
23 In that justification for the subpoena is the rationale which I addressed earlier, namely the idea that there must be some form of comprehensive record of detention produced in answer to any application for habeas corpus, a proposition which I do not accept.
24 I now turn to the particular categories of documents that would be the subject of the proposed subpoena.
25 Category 1 seeks all records, file notes, entries, reports and correspondence regarding the admission, detention, processing, control and movement of the applicant in the custody of the first respondent. The category of documents is extremely broad. It is patently unconfined by reference to the issues that are agitated in the proceedings. It is, I accept, oppressive. It would require the production of every single document that was in the possession of the first respondent that had anything to do with the control of the applicant. It is unconfined to the issues in these proceedings and being so broad as to be oppressive, I do not accept that there should be a subpoena addressed in that way.
26 Category 2 seeks something called the forms 10, forms 11, letters of production, law lists published by the Court, notices or attendance authorities within the meaning of s 69 of the Corrective Services Act 2006 (Qld) concerning the applicant. In submissions for Mr Pauga it was explained that these are documents of a character which are expected to be the documents brought into existence to support Mr Pauga being brought up before the magistrate at the end of each period of remand. There is no claim in the submissions which form any grounds which seek to challenge separately those actions. In the absence of there being an articulation of a ground that relies upon those documents, the documents sought are not demonstrated to be relevant to the application.
27 As was exposed in the course of submissions, it is not apparent why there would need to be some separate challenge to these documents, depending as they do upon the same arguments, it would seem, as those which are said to infect the remands that are the subject of the application. Those documents are challenged on the basis that various documents were issued not with the authority of magistrates acting as persona designata as required but either by the magistrates acting as judicial officers or by some officers of the Court acting without direction or control or supervision by a magistrate acting as a persona. And it appears that what is sought to be done is to obtain these documents the subject of Category 2, in order to identify further documents which might be the subject of that same argument. So, in addition to the fact that there is no such claim to that effect currently the subject of these proceedings, it is not apparent to me why it is necessary to identify a separate challenge to those documents based upon the same argument, the merits of which will, if successful, infect the documents that are already under challenge.
28 For those reasons, without there being an issue raised in support of the application that goes to those documents, they are not relevant, and I refuse leave to issue a subpoena for those documents.
29 Category 3 appears to be a more general description of those same documents. It is expressed as the records of the first respondent authorising the transfer of the applicant to the Brisbane Magistrates Court on each occasion. I put to one side an issue on which I am presently reserved as to whether the Brisbane Magistrates Court, currently named as a party is, indeed, an identifiable entity about which there might be such a description. I assume for present purposes that use of that term might be sufficient to describe a category of documents. For reasons that I have given in relation to Category 2, those documents are not the subject of any identifiable ground articulated in the written submissions, and I refuse them on the basis that a subpoena for those documents is not demonstrated to be relevant.
30 Likewise, Category 4 which deals with the obligations to produce the applicant by video link. There is no case advanced that there is some unlawfulness associated with that production that has been identified in any way in submissions in support of the application for the subpoena. There being no articulation as to how Category 4 relates to the case as identified in the written submissions, I refuse leave to issues those documents.
31 As to Category 5, it relates to an entirely separate matter in which the applicant was brought from custody to the Redcliffe Magistrates Court to face, it was said in submissions, criminal charges. Those matters are unrelated to the issues the subject of the present proceeding. The lawfulness of that activity is not in dispute in any way, and I refuse that category on the basis of relevance.
32 Finally, Category 6 seeks the records of the transfer of the applicant from the custody at the Brisbane City Watch House to what is described as AGCC on 24 August 2020. There were no particular submissions advanced to support that category of documents, and for that reason I refuse leave to issue a subpoena identifying that category.
33 It follows that the application for the subpoena should be refused.
34 An issue was raised as to whether the application for a subpoena was, itself, an abuse of process by reason that there had been an opportunity afforded to the applicant to obtain discovery. The reasons given by the Court in relation to discovery did not deal with these documents because there was no application in relation to discovery. One might have thought in those circumstances that there may have been an application for specific discovery being the more appropriate procedure to adopt in seeking documents from a party to the proceedings, but I do not rest my reasoning on any view in relation to the issue of whether the documents should have been sought be way of discovery.
35 The costs of and incidental to the application to issue a subpoena to the first respondent in the terms set out in the affidavit of Mr Finlayson will be reserved.