Rana v State Ombudsman of South Australia [2003] FCA 1259 | Case summary

REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from an interlocutory judgment of a Federal Magistrate given on 11 July 2003. The appeal lies under s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) but leave to appeal is necessary by reason of s 24(1A) of that Act because the appeal is from an interlocutory judgment. By direction of the Chief Justice under s 25(1A), if leave to appeal is granted, the appeal is to be heard by a single judge. In those circumstances, I propose to hear together the application for leave to appeal, and if leave to appeal is granted, the appeal.

Consideration 11 The decision to set aside the subpoena, and the order that Mr Wasley is not compelled to comply with the subpoena, is an interlocutory one on a matter relating to practice and procedure. It did not finally determine the rights of the parties in the principal proceedings: Brouwer v Titan Corporation Ltd (1997) 73 FCR 241; Cubillo v Commonwealth (2001) 183 ALR 249 at 250; Carr v Financial Corporation of Australia Ltd (No.1) (1981) 147 CLR 246. It is not an interlocutory decision concerning a substantive right: Jarrett v Seymour (1993) 119 ALR 46 at 49. 12 Appellate courts exercise particular caution in reviewing interlocutory judgments pertaining to practice and procedure: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Auspine Ltd v HS Lawrence & Son Pty Ltd [1998] FCA 953. 13 The considerations generally to be applied by the Court upon an application for leave to appeal from an interlocutory decision are: (a) whether in all the circumstances, the decision is attended with sufficient doubt so as to warrant it being reconsidered by the Full Court; and (b) whether substantial injustice would result if leave were refused, supposing the decision to be wrong. See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; Niemann v Electronic Industries Ltd [1978] VR 431. 14 Having regard to those considerations, I have concluded that leave to appeal from the judgment of the learned magistrate should be refused. 15 In this instance, I do not consider there is any foundation shown for substantial, or any, injustice being suffered by the applicant by the order setting aside the subpoena, even assuming the order to have been wrong. That consideration alone is, in my view, sufficient to decline to grant leave to appeal. It is a case where, as the present application evidences, the disposal of the principal proceeding before the Federal Magistrates Court has apparently been delayed (and, if leave to appeal is granted, will be further delayed) by the challenge to an interlocutory ruling where there is nothing now before the Court to show that Mr Wasley could have given any relevant and admissible evidence or could have produced any relevant and admissible documentary material which was not otherwise available to the applicant. 16 The principal proceeding by the applicant against the University concerned dealings between the applicant and the University. Apparently, the applicant complained to the Ombudsman about the University's conduct in relation to him, and the Ombudsman conducted some investigation into that conduct. Neither Mr Wasley nor the Ombudsman is suggested to have been directly involved in the conduct of the University about which the applicant complains. The evidence which Mr Wasley might personally give is not shown to be relevant, beyond his capacity to produce documents. He is not shown even to have been directly involved in the Ombudsman's investigation of the applicant's complaints. Even if he had been involved in that investigation, his evidence relevant to the matters in issue would be hearsay, and so not admissible: s 59 of the Evidence Act. If his evidence were to be presented to adduce what the Ombudsman was told by a person or persons in the course of the investigation, there is nothing to indicate that those persons are not themselves available to give evidence, either voluntarily or under subpoena. The applicant did not claim that he did not know who had provided information to the Ombudsman in the course of the investigation. There has been nothing to suggest that the evidence of what Mr Wasley was told by a person in the course of the Ombudsman's investigation would, or might, be an admission or a previous representation which could be admitted under s 81 of the Evidence Act. Indeed to suggest that what a particular person may have said to Mr Wasley or to the Ombudsman or his officers in the course of the investigation was made in circumstances which would make it admissible as an admission by the University itself or by one of the other parties to the principal application. There is nothing to indicate that the evidence of what others told Mr Wasley or the Ombudsman in the course of the investigation might be useful in cross-examining a witness called by one of the respondent parties to the principal application: see s 106 of the Evidence Act. The applicant has not indicated that the subpoena had a particular witness or potential witness in mind whose evidence might be challenged by cross-examination. 17 Accordingly, on the material presented on the application for leave to appeal, I do not consider that either Mr Wasley or the records of the Ombudsman to the extent to which they comprise statements taken by or provided to the Ombudsman or his officers would or may provide evidence which would or might be admissible in the principal proceedings, and in respect of which the applicant might suffer any injustice if the material were not available to him. 18 Mr Wasley (if he conducted or assisted in the Ombudsman's investigation) or the Ombudsman's file may also contain copies of primary documentation. If it comprises documents of the applicant, he would have the originals or copies of them. If it comprises documents of the University or of another respondent party to the principal proceedings, there is nothing to show that the documents have not been discovered and made available to the applicant, or have not otherwise become available to him during any investigation by the Human Rights and Equal Opportunity Commission prior to the principal proceedings under s 48 of the HREOC Act. If it comprises documents of third parties, the documents can be secured by agreement or by subpoena directed to the third party. 19 Finally, I note the Ombudsman's file may contain internal memoranda, or preliminary or final reports or recommendations. Such documents would not advance the applicant's case in the principal proceedings, as they would represent the views of the Ombudsman or his officers upon information obtained during an investigation, whereas the learned Magistrate is required to form his own views on the matters raised in the principal proceeding in the light of all the evidence in that proceeding. It is not the Ombudsman's views in the matter which are the subject of the principal proceedings. If there is correspondence to the University, or to the applicant, or to other respondents in the principal proceedings, that material I assume has been discovered for what it is worth. 20 I observe that the subpoena directed to Mr Wasley was at large. It was not in its terms directed to the information provided by a potential witness, which might be used to cross-examine that witness or which might somehow be admissible as an admission against the interest of the University or another respondent to the principal proceedings. The terms of the subpoena itself gave no cause to discern that the applicant has a refined purpose in the issue of the subpoena beyond the production, and if useful the proof, of the totality of the Ombudsman's file. 21 For the reasons I have given, I do not consider there is shown to be any real risk of injustice, far less of substantial injustice, to the applicant by refusing leave to appeal from the order setting aside the subpoena. On the other hand, the present application itself demonstrates the potential to fragment, and delay, a hearing where interlocutory rulings on matters of evidence and procedure are subject to challenge in the way the applicant seeks. The situation would be greatly compounded if leave to appeal were granted. 22 In addition, although as I have said, the particular circumstances would not warrant a grant of leave to appeal in any event, I do not think the decision of the learned magistrate is attended with any real doubt. 23 Northern Territory of Australia v GPAO (1998) 196 CLR 553 (GPAO) concerned the validity and enforceability of s 97(3) of the Community Welfare Act 1983 (NT)(Community Welfare Act), which was to the same general effect as ss 22 and 30(2) of the Ombudsman Act 1972. The applicant did not contend that there was any relevantly differentcontent in s 97(3) of the Community Welfare Act to that being considered on the present application. The High Court upheld the validity of s 97(3), and determined that it operated so that the subpoena there under consideration, requiring the production of documents to the Family Court of Australia in the face of s 97(3) of the Social Welfare Act 1983 (Social Welfare Act), did not have to be complied with. 24 The High Court (Gleeson CJ and Gummow JJ at 571, with whom Gaudron J at 606 and Hayne J agreed at 650-651 and Gaudron J at 606), ruled that the Evidence Act does not operate in the field concerning the production of documents in response to a subpoena. There could, therefore, be no question of any inconsistency between the operation of s 97(3) of the Community Welfare Act in relation to the operation of a subpoena to produce documents to the Family Court and the operation of the Evidence Act. Their Honours (Gleeson CJ and Gummow J at 587-589, with whom Hayne J agreed at 650-651 and Gaudron J at 607-609) also concluded that, notwithstanding that under the Family Law Act 1975 (Cth) (Family Law Act) the best interests of the child in considering a parenting order were paramount, s 97(3) in its terms and in its operation was not inconsistent with any provision of the Family Law Act. In particular, s 97(3) did not so reduce the ambit of the Family Law Act that the two sets of provisions are irreconcilable. Section 112AC of the Family Law Actprovided penalties for non-compliance with a subpoena only if there were no 'reasonable excuse' for the non-compliance; and the immunity provided by s 97(3) of the Social Welfare Act was such as to provide a reasonable excuse for non-compliance. Consequently, the Family Law Actdid not 'otherwise provide' within the meaning of s 79 of the Judiciary Act. McHugh and Callinan JJ reached the same conclusion, but as their Honours regarded the Family Court of Australia as exercising in the circumstances 'territory' jurisdiction, the particular considerations which now arise were not required to be addressed. However, their Honours at 629 did reach the same conclusions on the 'inconsistency' issues as Gleeson CJ, Gummow, Gaudron and Hayne JJ. 25 I understand from the reasons for judgment of the learned Magistrate that the attendance of Mr Wasley pursuant to the subpoena was not in the course of the trial of the principal proceedings, but arose by the notice of motion to set it aside. In that event, I consider the decision in GPAO is directly on point, at least in relation to the requirement under the subpoena to produce documents. If the issue arose at the hearing of the principal application, Chapman v Luminis Pty Ltd (No.3) (2000) 104 FCR 368; [2000] FCA 1120 (Chapman) may provide a basis for claiming that the production of documents was itself part of the proposed oral evidence of Mr Wasley, and the requirement may therefore fall under the aegis of operation of the Evidence Act: see per von Doussa J at 373-374, [14]-[20]. In any event, the subpoena to give oral evidence certainly contemplated Mr Wasley's attendance at the trial. 26 It is therefore necessary to determine whether there is arguably an inconsistency between ss 22 and 30(2) of the Ombudsman Act and the provisions of the Evidence Act or of the FM Act or the FMC Rules in relation to the power of the Federal Magistrates Court to issue and require compliance with a subpoena to give evidence (and, as part of the giving of evidence, to produce documents). I express the issue that way because the learned Magistrate found that compliance with the subpoena by Mr Wasley would contravene ss 22 and 30(2) of the Ombudsman Act, and on that basis set aside the subpoena. If compliance with the subpoena would not have involved contravention of those provisions, because they could not stand consistently with the terms of the Evidence Act or the FM Act or the FMC Rules, then the reason for the exercise by the Magistrate of his power to set aside the subpoena would not exist. The consequence would be that one or more of those Commonwealth expressions of legislative intention would 'otherwise provide' within the meaning of s 79 of the Judiciary Act so the learned Magistrate would have erred in concluding to the contrary. 27 The applicant first presents a simple, but in my view, erroneous approach to the issue. His contention is that because s 79 of the Judiciary Act directs federal courts to give effect to procedural and evidentiary laws of the States and Territories, unless Commonwealth legislation otherwise provides, and because the Ombudsman Act was enacted in 1972, the 'ambulatory effect' of s 79 operated with respect to the Ombudsman Act as at that time only. Hence, he argues, the subsequent HREOC Act, the subsequent Evidence Act, and the subsequent FM Act and FMC Rules necessarily 'otherwise provide' simply because they are later in time. I do not accept that contention is one which should take the time of an appellate court. To state the proposition clearly is to demonstrate its fallacy. It does not require any consideration of particular statutory provisions. It wrongly assumes that the time of enactment of legislation is the only time at which s 79 of the Judiciary Act operates upon the provisions in the enactment. In its terms, s 79 has a continuing operation directed to all Courts exercising federal jurisdiction in Australia, and which must be applied in relation to proceedings before such a Court. 28 The applicant presented the alternative contention that the operation of ss 22 and 30(2) of the Ombudsman Act are in fact inconsistent with s 36 of the Evidence Act, with s 15 of the FM Act and rule 15.23 of the FMC Rules, and with Sch 2 Art 25(c) of the HREOC Act. It is necessary to address each of those provisions in turn. 29 Under the Evidence Act, Mr Wasley in general terms is a competent and hence compellable witness in the principal proceedings: s 12. During his evidence he may be ordered to produce documents: s 36. His evidence would only be admissible if it survived the prism of Part 3 of the Evidence Act, principally for present purposes (I suspect) the relevance test ss 55 and 56, and the hearsay rule s 59. I have already referred to the latter aspect. The fact that Mr Wasley falls within the general terms of s 12 and s 36 is however only indirectly relevant to the attack upon the decision of the magistrate to set aside the subpoena. It is the issue of the subpoena, and its setting aside which is under challenge. Mr Wasley was prepared to attend the court in accordance with the subpoena, but when it was set aside his obligation to do so came to an end. He did not get to the point of giving evidence. To the extent that questions were then asked of him which might have involved a contravention of s 30(2) of the Ombudsman Act, he did not have to determine whether or how he would respond. The Evidence Act, whilst referring to witnesses attending under subpoena (eg s 36), does not itself address the process by which persons are obligated to attend court to give evidence or to produce documents. 30 In P v P (1994) 181 CLR 583, Mason CJ, Deane, Toohey and Gaudron JJ said at 602: 'A law of the Parliament conferring jurisdiction upon a federal court in general terms will, in the absence of a clear legislative intent to the contrary, ordinarily be construed as not intended to confer jurisdiction to make an order authorizing or requiring the doing of an act which is specifically prohibited and rendered criminal by the ordinary criminal law of the State or Territory in which the act would be done. Of course, the nature of the jurisdiction or the matters which have historically been determined in the exercise of that or a like jurisdiction may suffice to make clear such a contrary intent.' 31 That is because it is ordinarily presumed that the legislative intent is that jurisdiction conferred in general terms will be exercised in the context of, and within the ordinary confines of, the ordinary criminal law of the State or Territory. 32 This is not a case where that approach is inapplicable because the ss 22 and 30(2) of the Ombudsman Act are part of a statutory scheme conferring powers which compete with or overlap the jurisdiction of the Federal Magistrates Court. Nor is it a case where those provisions operate within the very area that the jurisdiction conferred by the HREOC Act was intended to control. There is no apparent legislative intention that the operation of the Evidence Act should operate to cover the field of the circumstances in which the Federal Magistrates Court might determine to set aside a subpoena which has been issued, or to specify the circumstances to which the Federal Magistrates Court might have regard in setting aside a subpoena. In particular, there is no provision in the Evidence Act which appears to direct the Federal Magistrates Court that it should not have regard to provisions such as ss 22 and 30(2) of the Ombudsman Act in exercising its power to set aside a subpoena. 33 In my judgment, there is also nothing in the FM Act with respect to the issue of, and compliance with, subpoenas which suggests that it is intended to have effect over, and in the face of, provisions such as ss 22 and 30(2) of the Ombudsman Act so that the Federal Magistrates Court, in exercising its power to set aside a subpoena, may not have regard to provisions such as ss 22 and 30(2) of the Ombudsman Act. Section 84(a) of the FM Act provides for the FMC Rules to make provision for or in relation to subpoenas. Division 15 of the FMC Rules deals with subpoenas and notices to produce. Rule 15.13 refers generally to the power to issue subpoenas. Rule 15.18 provides for that Court, on application, to make an order setting aside all or part of a subpoena. It is not limited in its breadth of operation, nor confined explicitly to particular circumstances in which the power to set aside all or part of a subpoena may be exercised. Rule 15.23(1) provides for the power, in the discretion of that Court or a registrar, to issue a warrant for the arrest of a person who does not comply with their subpoena. Section 65(1) of the FM Act provides that a person is guilty of an offence if the person has been duly served with a subpoena to appear as a witness before the Court and fails to attend as required by the subpoena. It is not applicable in the present circumstances because it does not appear that Mr Wasley was not prepared to attend in response to the subpoena. He sought an order that the subpoena be set aside. Pursuant to r 15.18, the Court on his application set aside the subpoena both in respect of the obligation to attend to produce documents and the obligation to attend to give evidence. 34 I do not consider the obligation to attend to give evidence or to produce documents pursuant to a subpoena is one which, having regard to the very general provisions of the FM Act and the FMC Rules, itself directs the Federal Magistrates Court to ignore provisions such as ss 22 and 30(2) of the Ombudsman Act. The subpoena itself is not a law of the Commonwealth. The relevant law is the enactment which empowers the issue of the subpoena. That enactment is in general terms. It is part of the enactment (the FMC Rules) that a discretion is preserved to set aside a subpoena. The provisions of the FM Act and the FMC Rules to which I have referred do not appear to provide that the Federal Magistrates Court should not have regard to such provisions as ss 22 and 30(2) of the Ombudsman Act when considering whether to set aside a subpoena. See also the discussion by von Doussa J in Chapman regarding O 33 r 11 of the Federal Court Rules and s 35 of the Aboriginal Heritage Act 1988 (SA) at 375 - 376 [23] - [25]. 35 The HREOC Act defines the 'Covenant' as the International Covenant on Civil and Political Rights as set out in Sch 2 as it applies in relation to Australia. The applicant's reference to Art 25(c) is a reference to the Article of the Covenant which provides for every citizen to have the right and the opportunity without unreasonable restrictions to have access, on general terms of equality, to public service in that person's country. The term 'human rights' is defined to include the rights and freedoms recognised in the Covenant. I do not see any basis for the applicant's contention that ss 22 and 30(2) of the Ombudsman Act, being laws of general application in South Australia, are inconsistent with Art 25(c) of the Covenant, even assuming that Art 25(c) is directly part of the domestic law of Australia. 36 Consequently, even if it were either necessary or appropriate on the present application to have regard to whether the decision of the learned Magistrate was attended with sufficient doubt to warrant it being reconsidered by the Full Court, I do not consider that consideration would warrant the grant of leave to appeal, either taken alone or in conjunction with other matters. 37 I have not overlooked the argument that because Mr Wasley is or may technically be employed under the Public Sector Management Act 1995 (SA) and assigned to the Ombudsman's office, he is obliged to comply with the subpoena notwithstanding ss 22 and 30(2) of the Ombudsman Act. 38 Even if that be correct, I do not consider it affects the relevant operation of ss 22 and 30(2) of the Ombudsman Act. Section 22 operates on the information itself 'obtained by or on behalf of the Ombudsman'. The terms of the subpoena indicate that is the information which the subpoena seeks to secure. It is not to the point that the person obtaining, or holding, such information may have been employed under the Public Service Management Act 1985 (SA). Section 30(2) operates with respect to the Ombudsman or 'any member of the Ombudsman's staff'. The term 'member of the Ombudsman's staff' is defined in s 30(3). The definition does not function to exclude Mr Wasley from its scope because he was employed under the Public Service Management Act 1985 (SA). There is no other information to indicate he is not a member of the Ombudsman's staff. The subpoena indicates that he enjoys that status. Moreover, the point was not taken before the learned Magistrate. If it is seriously contended that Mr Wasley is not a member of the Ombudsman's staff, but nevertheless has the physical capacity to produce records of the Ombudsman, a fresh subpoena might be issued in which his status can be properly investigated. 39 The applicant has alleged that he was not given a proper opportunity to present his 'full evidence' in opposition to the motion to set aside the subpoena, and was given a limited time to finish his 'evidence or submission'. He also asserts 'relevant evidence was available to produce the opposite result'. The subsequent written submissions of the applicant tend to suggest that in substance his complaint is that he was not given as much time as he would have liked to develop his contentions that ss 22 and 30(2) of the Ombudsman Act are inconsistent with the provisions to which I have referred above. He has made extensive written submissions on this application developing those contentions. I have had the opportunity of carefully considering them. They do not identify any evidence which the applicant would have adduced, but did not have the chance to adduce, on the hearing of the motion to set aside the subpoena. 40 It may be that the learned Magistrate limited the time available for legal argument on the motion. I do not consider he has been shown to have fallen into legal error in doing so, or that leave to appeal from his decision should be given because he did so. To the extent that the applicant alleges that the learned Magistrate's decision was the result of bias or perceived bias on his part because of the time allowed to the applicant, the reasons for decision in my view simply provide no support for the allegation. I have not been provided with any other material capable of supporting the allegation. The applicant has not put before this Court any transcript of the hearing before the learned Magistrate of the notice of motion. He has chosen only to make general assertions about the conduct of the hearing in various parts of his written submissions. 41 If I have misunderstood the applicant's complaints about procedural fairness, so that in fact he had further evidentiary material (as distinct from submissions) which he wished to put before the Court on the hearing of the notice of motion before the learned Magistrate, I observe that the applicant has not put that material before this Court on the application for leave to appeal. Consequently, I am not persuaded that he was deprived of the opportunity to have done so, or that such material may have been relevant to the decision on the motion. The applicant, if he maintains that he has further relevant evidentiary material, may seek to issue a fresh (perhaps more limited) subpoena, and if there is an application to set it aside, he should adduce by affidavit the evidentiary material he claims is relevant to the application to set it aside.

Rana v State Ombudsman of South Australia

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