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[2014] NSWSC 131
Supreme Court of NSW
2014-02-25
Schmidt J, Johnson J, Hulme AJ
Original judgment source is linked above.
Judgment 1Mr Potier has a conviction appeal before the Court of Criminal Appeal. He has made a bail application to which s 30AA of the Bail Act 1978 (NSW) applies, an earlier application for such bail having been refused. In the result he must establish exceptional circumstances before his bail application can be granted. 2The basis of his bail application is that his legal privilege in his legal documents has been breached; that he has been denied access to his legal documents; and that there has been a contempt of court, which cannot be cured whilst he remains in custody. In order to advance that application Mr Potier has served a subpoena for the production of documents on the Commissioner for Corrective Services. 3This judgment deals with a motion brought by the Commissioner, by which orders are sought setting aside the subpoena on the grounds that it has no legitimate forensic purpose; that it was oppressive; and that production of documents over which a proper claim of public interest or client legal privilege was made not be required. An order that no further subpoena be issued without leave of a judge of the Court was also sought. 4That motion is pressed in circumstances where, in July 2013, Mr Potier's bail application came before Johnson J. His Honour then refused the issue of certain subpoenas to give evidence, but considered that the question of whether there should be a subpoena for the production of documents should be determined separately. His Honour observed that if such a subpoena was pursued it "would be a matter for the recipient of the subpoena to determine what attitude should be taken to it and for the Court to determine what should be done in relation to any application brought" (see R v Potier (Supreme Court (NSW), Johnson J, 25 July 2013, unrep). 5Mr Potier later served a subpoena on the Commissioner, which was set aside by Hulme AJ in October 2013 (see R v Potier (Supreme Court (NSW), RS Hulme AJ, 25 October 2013, unrep). Mr Potier then served a second subpoena, which is the subject of this application.
The evidence 6Mr Potier relied on affidavits he had sworn and that sworn by Mr Carr, a solicitor, which were before Hulme AJ, as well as affidavits he has since sworn, which explained the basis for his complaints that his legal professional privilege has been breached; his resulting application for bail; and how he has pursued his concerns and his subpoenas and the bail application. His evidence ranged over a variety of other matters, including accounts which he gave as to how he and his legal documents had been moved from one correctional centre to another over time and how he has been dealt with in relation to his pursuit of various civil and criminal proceedings in which he is involved in Australia and overseas. 7The Commissioner relied on the affidavit evidence of Mr Griffiths, a legal officer employed in Justice Legal (Corrective Services (NSW)) and of Ms Nicholson, previously the Acting General Manager of Dawn De Laos Correctional Centre, where Mr Potier was housed at one point. 8On the evidence it is not in issue that there was an investigation conducted into Mr Potier's computer use; that while it was pursued the USB sticks which contained his legal materials were removed from him; that Mr Carr and Ms Nicholson had a discussion about their removal; that Mr Potier later complained that his USB sticks had been wrongly accessed, with the result that his legal professional privilege had been breached; and that his complaint was investigated. 9In his affidavit Mr Griffiths explained the steps he had pursued to investigate what compliance with the new subpoena would involve; what further steps would be required to find and collect the documents which had been subpoenaed and to identify those documents in respect of which a claim for legal professional privilege lay; and the cost involved. He was not required for cross examination. Mr Griffiths considered that the subpoena would catch every document held in relation to Mr Potier which had been brought into existence after December 2011. This was not disputed. 10Mr Griffiths was aware of the allegation made by Mr Potier that in March 2013, Ms Nicholson had taken steps which had resulted in access being obtained to a USB stick containing Mr Potier's legally privileged material. Ms Nicholson denied that this had occurred. Mr Griffiths explained that a claim of public interest immunity would be pressed in relation to some of the documents concerning this matter, if the subpoena were not set aside. 11Ms Nicholson denied having a conversation referred to in Mr Carr's affidavit, sworn in October 2013. There he deposed: "4. On the 26 February 2013 Mr Potier contacted me concerned that he alone as compared to other inmates with approved USB sticks was being denied access to his USBs. 5. On Mr Potier's request I immediately contacted the General Manager of the Dawn De Loas Correctional Centre, Ms Leanne Nicholson on. She gave a clear answer to my query that Mr Potier's UBS Sticks were being examined for content and would not be given to him until they had been fully inspected. 6. Further to the event described above, I have assisted Mr Potier in a number of his legal matters. It is my view that Mr Potier's criminal and civil proceedings have been compromised to the advantage of the Department of Corrective Services NSW, be it the State of NSW, the Crown or individuals. It is also Mr Potier's strong belief that the Department of Corrective Services NSW have been given the contents of his privileged legal communication." 12Ms Nicholson's affidavit was sworn in January 2014. She deposed that in February 2013 she had received information from the Centre's Intelligence Unit in relation to Mr Potier's computer use and that subsequently all of his USB sticks were delivered to her. She denied that they had been examined or his legal professional privilege breached, but confirmed that his computer use had then been investigated. That accorded with Mr Potier's affidavit evidence, which deposed to some of the consequences of that investigation. As to her conversation with Mr Carr, she said: "14. I recall this conversation and deny informing Mr Carr that the USBs were being examined or inspected. 15. I recall saying words to the effect that the USBs were being withheld and would be returned in due course. I informed him that I was not at liberty to disclose the reasons for this. 16. I would not have said that they were "being examined for content" as this did not occur. I was and remain of the view that the Corrective Services Operating Procedures Manual section 5.4.3 prohibited this occurring except in the presence of the inmate. " 13Ms Nicholson also deposed to other matters which Mr Potier submitted disclosed her breaches of various Regulatory requirements. 14Neither Mr Carr nor Ms Nicholson were cross-examined. There was a dispute between the parties as to whether Ms Nicholson ought to have been made available for cross-examination, given what had transpired in proceedings before the Registrar in December 2013, when the matter was listed for hearing. That could not be resolved in the absence of the transcript, which was not available. 15Mr Potier's position was that it was important for the resolution of the motion and his bail application that he have the opportunity to cross-examine Ms Nicholson and that he ought to be given that opportunity, before a decision was given in relation to the Commissioner's motion. 16I finally concluded that this submission could not be accepted in the circumstances which had arisen, with the result that neither Ms Nicholson, nor Mr Carr, were called for cross-examination. 17Mr Potier's concerns have arisen, as he explained, from events which occurred in March 2013. They rest on the understanding to which Mr Carr deposed. Ms Nicholson's evidence is that his understanding is wrong. Mr Carr has given no evidence as to the terms of the conversation on which his understanding rests. 18Whether Mr Carr's understanding has a proper foundation does not need to be resolved for the motion to be determined. 19Like Hulme AJ, I am satisfied that pursuit of documents which evidence a breach of Mr Potier's legal professional privilege would have a legitimate forensic purpose in these bail proceedings. This conclusion is a sufficient basis upon which the matters over which the parties joined issue on the motion can be resolved. 20Adjourning the hearing to permit an investigation of what had happened before the Registrar, as Mr Potier sought, was not warranted in the circumstances, given the delay and cost which would result and was not what justice required, given the issues lying between the parties in relation to the motion. Given what later fell from Mr Potier as to his concern about the delay in the hearing of his bail application, which is listed for hearing tomorrow, my conclusions in this regard were reinforced.
The parties' cases 21The Commissioner's case was that Mr Potier's second subpoena was an abuse of process, not curing the problems which Hulme AJ had identified in his 2013 judgment and that it, too, should be set aside and Mr Potier prevented from issuing any further subpoenas, without prior leave of a judge of the Court. 22Mr Potier's case was that in July 2013, Johnson J had considered the question of legitimate forensic purpose and had consented to the subpoena for production of documents being issued; and that Hulme AJ had later rejected the subpoena which he had issued on the basis of a technical approach adopted by the Commissioner. His Honour did not, however, disagree with Johnson J's finding that the documents he had pursued did have a legitimate forensic purpose, although he found that their description was inadequate. 23It followed that the question of legitimate forensic purpose had been decided in July 2013; that problems with the wording of the subpoena had been addressed; that the number of documents sought was minimal and date specific; that any claim for public interest immunity or legal professional privilege could be resolved once the documents were sought; that the instances he complained about related to events that had occurred in March 2013, which had led to the making of the bail application; and that it would be concluded that the Commissioner was simply seeking to delay the hearing of the bail application and interfere with the administration of justice and that accordingly, the motion should be dismissed.
What RS Hulme AJ decided 24Mr Potier was plainly wrong in his submission that the question of legitimate forensic purpose of the documents he sought to have produced had been decided in July 2013 by Johnson J. That was not a matter which his Honour had to determine. 25To resolve the issues lying between the parties, it is necessary to determine whether Mr Potier's analysis of Hulme AJ's decision can be accepted, his case depending as it does on that understanding. 26On 25 October 2013, the Commissioner was successful in the motion then pursued before Hulme AJ, who ordered that Mr Potier's first subpoena for production of documents be set aside, concluding that the Commissioner was under no obligation to comply with the subpoena, given when it was served. His Honour also considered the terms of that subpoena, observing amongst other things that it was difficult to think of any documents "since December 2001(sic)" within the province of the Commissioner for Corrective Services not caught by the subpoena; that it was not apparent on the face of the subpoena what the purpose of the documents sought were; or how all of the documents in the Commissioner's possession which might refer to Mr Potier, could conceivably be relevant to his bail application. 27His Honour accepted that it was possible that some documents might be relevant, but took the view that the subpoena was so widely drafted that it was oppressive and liable to be set aside on that ground. His Honour concluded that "If there is any forensic purpose in any one or a reasonable number of the documents sought, that does not, in my view save it." He also considered that some paragraphs which were unlimited in time were also liable to be set aside on that ground. 28His Honour noted that Mr Potier's major concern appeared to be that officers of the Department had access to some of his documents which were the subject of legal professional privilege. He accepted that affidavits which Mr Potier and Mr Carr had sworn, on which Mr Potier relied, suggested that he might have a legitimate complaint in relation to a breach of legal professional privilege; that evidence of such a breach would be relevant to his bail application; and that "any subpoena which was obviously directed to providing further evidence to support his contention would have a legitimate forensic purpose." 29His Honour noted that a suggestion was made by the Commissioner as to the terms of a subpoena which would capture such documents. His Honour made some observations about the suggested wording, but what was then proposed was not accepted by Mr Potier. His Honour also made other observations as to the drafting of the summons, observing, for example, that a person subpoenaed was under no obligation to bring documents into existence and noting that Mr Potier had sought to redraft the subpoena by substituting the words 'printout' for 'certified copy', but not the more commonly used 'original or copy'. His Honour also observed that it was not for him or the legal representative for the Commissioner to redraw Mr Potier's subpoena.
The two subpoenas 30The subpoena dealt with by Hulme AJ sought production of: "1. A certified copy of all the alerts currently placed on the inmate management system, in full, identifying persons making such entries and dates thereof, relating to inmate Malcolm Huntley Potier, MIN 312359. 2. A certified copy of any and all case notes made at any time from December 2011 made by any persons, in full, identifying persons making such notes, to today, relating to inmate Malcolm Huntley Potier, MIN 312359. 3. A certified copy of any and all documents received, in any format, from any source relating to Malcolm Huntley Potier from December 2011 to today concerning his current incarceration. 4. A certified copy of any documents created and / or sent to third parties relating to the incarceration of Malcolm Huntley Potier MIN 321359 since December 2011 to today, stored in any medium, by any persons, including, but not limited to, intelligence files. 5. A certified copy of any documents received, from any persons, identifying them in full, any actions taken and results of such actions in relation to Malcolm Huntley Potier MIN number 312359, since December 2011. 6. A certified copy of any disclosures made, to any persons, identifying them in full of the contents of Malcolm Huntley Potier MIN 312359 legal material stored as documents, electronically created files or any other medium. 7. A certified copy of any all reports made of any nature at any time as the results of any investigations made or carried out in any fashion or medium into inmate Malcolm Huntley Potier MIN 312359 since December 2011. 8. A copy of inmate application made by Malcolm Huntley Potier MIN number 312359 on the 26 December 2013 number 13977 to the general manager Dawn De Loas Correctional Centre. 9. A copy of the transit record of inmate Potier's property for the 2nd March 2013." 31The new subpoena seeks production of: "1. A Corrective Services computer containing the following; or in the alternative, a hard copy, or original or copy, of all alerts, currently on the inmate management system, in full, identifying persons making such entries and dates thereof, relating to inmate Malcolm Huntley Potier MIN 312 359 from December 2011 to today. 2. A Corrective Services computer containing the following; or in the alternative, a hard copy, or original or copy, of any and all case notes made at any time from December 2011 by any persons, in full, identifying persons making such notes, to today, relating to inmate Malcolm Huntley Potier MIN 312 355 3. A Corrective Services computer containing the following; or in the alternative, a hard copy, or original or copy, of any and all documents received in any format from any source relating to inmate Malcolm Huntley Potier MIN 312 359 from December 2011 to today 4. A Corrective Services computer containing the following; or in the alternative, a hard copy, or original or copy, of any and all documents or reports created in any format and / or sent to third parties relating to the incarceration of inmate Malcolm Huntley Potier MIN 312 359 since December 2011 to today, stored in any medium, by any persons, including, but not limited to, intelligence officers, such documents to include, but not limited to communications with the Serious Offenders Review Committee. 5. A Corrective Services computer containing the following; or in the alternative, a hard copy, or original or copy, of any documents received from any persons identifying them in full, any actions taken and results of such actions in relation inmate Malcolm Huntley Potier MIN 312 359 since December 2011 to today. 6. A Corrective Services computer containing the following; or in the alternative, a hard copy, or original or copy, of any disclosures made, to any persons, identifying them in full of the contents of inmate Malcolm Huntley Potier MIN 312 359 legal material stored as documents, electronically created files or any other medium, from December 2011 to today. 7. A Corrective Services computer containing the following; or in the alternative, a hard copy, or original or copy, of all reports made of any nature at anytime and the results of any investigations made or carried out in any fashion or medium into inmate Malcolm Huntley Potier MIN 312 359 since December 2011 to today 8. A copy, of the inmate application made by inmate Malcolm Huntley Potier MIN 312 359 on the 26th February 2013 number 13977 to the General Manager, Dawn De Loas Correctional Centre. 9. A copy of the transit records of inmate Malcolm Huntley Potier MIN 312 359 property for the 2nd March 2013, and July August 2013." 32What was sought in paragraph 8 of the new subpoena was the subject of a concession by the Commissioner at the hearing. It is not in issue that Mr Potier made that application to Ms Nicholson. The objection to paragraph 9 was not pressed, but the objections to paragraphs 1 to 7 were maintained.
The subpoena must be set aside 33While the problem with time which Hulme AJ identified has been addressed in the new subpoena, other of the deficiencies which Hulme AJ dealt with, have not been. 34While all of the documents which Mr Potier has subpoenaed are no doubt of interest to him, for reasons which he explained, that does not make them relevant to this bail application. Nor is Mr Potier entitled to discovery of all documents which are relevant to the application. A subpoena must identify with reasonable particularity the documents which must be produced. While a subpoena must be interpreted in a broad common sense way, a subpoena cannot require production which is oppressive. It may require production of documents that relate to a particular fact or subject matter, provided that the production required is reasonably necessary and the scope of the documents required does not impose an oppressive burden on the recipient. It cannot simply impose an obligation on the recipient to identify documents by reference to their relevance to the issues which lie between the parties to particular proceedings. 35It is apparent that paragraphs 1 to 7 of the new subpoena suffer from the same deficiencies as those identified by Hulme AJ in relation to the first subpoena. The subpoena is not confined to documents relevant to the bail application and Mr Potier's contention that his legal professional privilege has been breached. It does not pursue only those documents which support his contention that there has been a breach of his legal professional privilege, which would have the legitimate forensic purpose Hulme AJ discussed and which I have also accepted as having been established. 36The subpoena also seeks documents which could not conceivably be relevant to Mr Potier's bail application, requiring as it does the production of all documents which relate to Mr Potier in the Commissioner's possession from December 2011 (see National Employers' Mutual General Insurance Association Ltd v Waind and Hill [1978] 1 NSWLR 372). Given the breadth of the way in which the subpoena is drawn, it unarguably requires discovery of a range of entirely irrelevant documents created or obtained in a timeframe which goes beyond the concerns which Mr Potier explain arose from events which occurred in February 2013. 37On Mr Griffith's unchallenged evidence as to what the production sought would involve and the cost, it is plainly oppressive and an abuse of process, given what Hulme AJ has already determined in relation to the first subpoena.
Leave to issue any further subpoena 38There was also a question as to whether an order should be made that Mr Potier issue no further subpoena in these proceedings, without prior leave of a judge of the Court. 39Mr Potier opposed such an order, submitting that the Court would not impose such a restriction on his right to issue a subpoena in a bail application such as this, particularly given the seriousness of what he alleged. He also argued that to do so would be inconsistent with the orders made by McCallum J under the Vexatious Proceedings Act 2008 (NSW) in Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118. There her Honour concluded at [218] - [219]: "218 The more difficult issue is the question of criminal proceedings. As already noted, the Attorney General does not seek an order staying Mr Potier's appeal against his conviction for the third charge of soliciting to murder. However, the Attorney General does seek an order prohibiting Mr Potier from instituting any interlocutory proceedings in connection with or incidental to that appeal. 219 It is not entirely clear to me what proceedings would fall within any such prohibition. It could arguably include an application for bail. As revealed by the foregoing discussion of the proceedings relied upon by the Attorney General as vexatious, it has been assumed in argument, and I have implicitly accepted, that an application for bail is "proceedings" within the meaning of the Vexatious Proceedings Act. If that is correct, the order sought by the Attorney General would have the effect of precluding Mr Potier from making an application for bail without first satisfying the requirements of s 14 of the Act and obtaining leave of the court. I do not think it would be appropriate to fetter Mr Potier's entitlement to apply for bail in that way. A person in custody should, in my view, have an unfettered right to apply for bail in accordance with the law. The importance of determining such applications expeditiously is reflected in s 22 of the Bail Act." 40Her Honour ordered at [223] : (1) That, pursuant to section 8(7)(b) of the Vexatious Proceedings Act, the defendant be prohibited from instituting proceedings in New South Wales except interlocutory proceedings in his appeal proceedings pending in the New South Wales Court of Criminal Appeal numbered 2005/14700 (including any bail application). (2) That, pursuant to section 8(7)(a) of the Vexatious Proceedings Act, any proceedings already instituted by the defendant in New South Wales except his appeal proceedings pending in the New South Wales Court of Criminal Appeal numbered 2005/14700 and any interlocutory proceedings in that appeal be stayed. 41The Commissioner relied on s 7 of the Vexatious Proceedings Act, which provides: "7 Inherent jurisdiction and powers of courts and tribunals not limited This Act does not limit or otherwise affect any inherent jurisdiction or any powers that a court or tribunal has apart from this Act to restrict vexatious proceedings." 42The Commissioner also relied on Rule 75.3 of the Supreme Court Rules, which make Part 33 Subpoenas of the Uniform Civil Procedure Rules 2005, applicable to proceedings specified in the Third Schedule to the Supreme Court Act 1970, which include: "(a) Proceedings in the Court for the prosecution of offenders on indictment (indictment including any information presented or filed as provided by law for the prosecution of offenders) including the sentencing or otherwise dealing with persons convicted, " 43Mr Potier has been convicted of an indictable offence for which he is presently serving a sentence. Mr Potier is "a person accused of an offence "within the meaning of s 4(2)(a) and (c) of the Bail Act . His bail application, which was brought to this Court in accordance with s 28 of the Bail Act must be determined in accordance with its provisions (see Potier v Regina [2011] NSWCCA 204). It is plainly a proceeding in the Court which 'otherwise deals with him'. 44It follows that notwithstanding that an application for bail falls within the definition of 'criminal proceedings' in s 3 of the Civil Procedure Act 2005 (NSW), the relevant provisions of Part 33 of the Uniform Civil Procedure Rules apply to the subpoena (see R (Cth) v Petroulias (No. 22) [2007] NSWSC 692 at [41] - [42]). Rule 33.2 deals with the circumstances in which leave is required, before a subpoena is issued. They include where the Court has ordered that a subpoena may not be issued without leave. Ordinarily, it is only a party who is represented by a solicitor, who may issue a subpoena without leave (see Rule 7.3). Mr Potier is not so represented. That is not a Rule which Part 75.3 applies to him, but Rule 33.2 does contemplate that in appropriate circumstances such an order may be made in respect of a party such as Mr Potier. 45In the circumstances which have here arisen, given Mr Potier's approach to the conclusions reached by Hulme AJ and the terms in which his second subpoena was drafted, without proper regard being paid to the conclusions which his Honour reached, as I have explained, I am satisfied that justice requires the imposition of the requirement for prior leave which the Commissioner sought. 46Further, on my reading of McCallum J's orders, that would not depart from her Honour's intent. While Her Honour took the view that a leave requirement should not be imposed on Mr Potier's bail application, she took a different view in relation to interlocutory applications. Given the course which Mr Potier has taken, the imposition of a requirement that such leave be given by a judge of the Court, does not depart from her Honour's conclusions and in my view, is what justice demands in the circumstances which have arisen. 47The result will be that Mr Potier will not be precluded from the pursuit of documents which might support his application for bail, but he will have to take care to ensure that any further subpoena which he seeks to pursue is not drafted in such wide terms that it is oppressive and that it is properly directed to a pursuit of those documents which are relevant to the legitimate forensic purpose which he has established. If such care is not taken, the leave which he will require before he pursues any further subpoena, will not be forthcoming.
Order 48For the reasons given, I order that: 49
Amendments 28 February 2014 - Order 1 amended to reflect what was said in [32] Amended paragraphs: [48] 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: 28 February 2014
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