Franklin v Commissioner of Police and Anor

1. [1]

   JOHNSON J: The Plaintiff, Craig Andrew Franklin, has brought proceedings against the First Defendant, the Commissioner of Police, and the Second Defendant, Senior Constable Karen Brodie, seeking to challenge decisions of the Local Court with respect to subpoenas which the Plaintiff had issued in connection with criminal proceedings brought against him.

2. [2]

   By Court Attendance Notice, the Plaintiff is charged that on 2 September 2016 at Mount Victoria, he did assault Emma Franklin, an offence under s.61 Crimes Act 1900. It is said that the Plaintiff assaulted his wife at their home in Mount Victoria in an incident of alleged domestic violence. The Second Defendant is the officer-in-charge of the investigation.

3. [3]

   In advance of the defended hearing of the assault charge, the Plaintiff caused a number of subpoenas to issue directed to the Commissioner of Police and the Royal North Shore Hospital (“RNSH”).

4. [4]

   On 5 April 2017 and 18 and 19 July 2017, a Magistrate sitting at the Katoomba Local Court made a number of decisions concerning the subpoenas with which the Plaintiff is dissatisfied. The Plaintiff appeared for himself before the Local Court.

Proceedings in this Court

1. [5]

   By Summons filed on 2 May 2017, the Plaintiff sought to challenge decisions of the Magistrate made on 5 April 2017 with respect to subpoenas directed to the Commissioner of Police and the RNSH. That Summons did not adequately identify the question of law which was said to be involved or the error or errors of law which were alleged.

2. [6]

   The RNSH (or any relevant health entity) was not joined (and is still not joined) as a party to these proceedings.

3. [7]

   Orders were made by the Registrar for the Plaintiff to serve an Amended Summons on the Defendants by 5 June 2017.

4. [8]

   The Plaintiff came before the Magistrate once again at the Katoomba Local Court on 18 and 19 July 2017 at which time further subpoenas issued by him were the subject of rulings.

5. [9]

   By Notice of Motion filed on 3 August 2017, the Plaintiff sought leave to file an Amended Summons in this Court which challenged aspects of the decisions made concerning subpoenas on 5 April 2017 and 18 and 19 July 2017.

The Hearing Before this Court

1. [10]

   On 2 and 10 November 2017, the Plaintiff’s Notice of Motion proceeded to hearing before me. The Plaintiff (who has a legal background) appeared for himself at the hearing. Mr Bhalla of counsel appeared for the First and Second Defendants.

2. [11]

   A substantial volume of documentary material was placed before the Court at the hearing of the Notice of Motion.

3. [12]

   Affidavits of the Plaintiff sworn 9 May 2017 and 3 August 2017 were read for the Plaintiff and the affidavit of Maria Panos sworn 23 October 2017 was relied upon by the Defendants. Paragraphs 3 to 6 of the Plaintiff’s affidavit sworn 3 August 2017 were rejected as the documents there referred to were not before the Magistrate (T4-5, 38-39, 2 November 2017).

4. [13]

   For the purpose of this application, the principal documents to be considered are the subpoenas in relation to which challenge is made and the transcript of the proceedings before the Local Court on 5 April 2017 and 18 and 19 July 2017 (Exhibit 1) which include the reasons of the Magistrate for the decisions now challenged. Documents placed before the Magistrate during submissions concerning the subpoenas may also be considered (Exhibit A; T6, 2 November 2017), but with the clear understanding that this Court is exercising a very limited appellate jurisdiction.

Limited Avenue of Appeal to Supreme Court under s.53(3)(b) Crimes (Appeal and Review) Act 2001

1. [14]

   The Plaintiff is a party to summary criminal proceedings before the Local Court.

2. [15]

   Statutory provisions with respect to subpoenas in Local Court criminal proceedings may be found in ss.220-232 Criminal Procedure Act 1986 and Rules 6.1-6.9 Local Court Rules 2009.

3. [16]

   A person against whom an interlocutory order has been made by the Local Court in relation to the person in summary proceedings may appeal to the Supreme Court against the order, but only upon a ground that involves a question of law alone, and only by leave of the Supreme Court: s.53(3)(b) Crimes (Appeal and Review) Act 2001.

4. [17]

   The decisions of the Magistrate with respect to the subpoenas are interlocutory in nature: Mackintosh v Commissioner of Police (NSW) and Ors [2010] NSWSC 1064 at [3]; Feeney v NSW Police [2017] NSWSC 190 at [1].

5. [18]

   I note that s.53(3)(b) is confined to an “interlocutory order”. The provision is narrower than s.5F Criminal Appeal Act 1912 which provides for an appeal against an “interlocutory judgment or order”. It is not necessary to consider the scope of an “interlocutory order” in this case: cf Attorney General (NSW) v Stuart (1994) 34 NSWLR 667 at 672-673; Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156 at 184 [25]. The Defendants accepted that the decisions of the Magistrate constituted “interlocutory orders” for the purpose of s.53(3)(b). Accordingly, I will proceed upon the basis that interlocutory orders are under challenge in these proceedings.

6. [19]

   The avenue of appeal under s.53(3(b) is narrowly confined to a “ground that involves a question of law alone”. There is a question of law alone if the question of law can be stated and considered separately from the facts to which it may be connected in a given case: Williams v The Queen (1986) 166 CLR 278; [1986] HCA 88 at 287.

7. [20]

   A question concerning the application of correct legal principle to the facts of a particular case is a question of mixed fact and law: R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256 at 205 [26]. A “question of law alone” does not extend to an error of mixed fact and law: Carlton v R (2008) 189 A Crim R 332; [2008] NSWCCA 244 at 335 [10]; R v PL [2012] NSWCCA 31 at [37]-[39].

8. [21]

   Even if error of law is demonstrated, the case must still be an appropriate one for leave to appeal to be granted under s.53(3)(b). The requirement for leave to appeal with respect to an interlocutory order reflects the need to minimise the fragmentation of the process of criminal justice: NAR v PPC1 (2013) 224 A Crim R 535; [2013] NSWCCA 25 at 539 [14]; PPC v Williams (2013) 238 A Crim R 25; [2013] NSWCCA 286 at 35 [51].

9. [22]

   Generally, leave to appeal in a case involving a matter of practice and procedure (such as subpoenas) should not readily be granted unless an appropriate case is made out of an error of principle which is apt to cause an irregularity or injustice: NAR v PPC1 at 539-540 [17]; PPC v Williams at 35 [52].

10. [23]

    The Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal: s.54(1) Crimes (Appeal and Review) Act 2001. If the Court grants leave to appeal, the Court may determine an appeal against an order referred to in s.53(3)(b) by setting aside the order and making such other order as it thinks just or by dismissing the appeal: s.55(3) Crimes (Appeal and Review) Act 2001.

Matters of Practice and Procedure in the Local Court

1. [24]

   In approaching the challenges to the decisions of the Magistrate, it is necessary to bear in mind not only the narrow nature of appellate review which is available to the Plaintiff, but also the fact that decisions were made concerning the subpoenas in the course of a procedural hearing. This involved quintessential matters of practice and procedure which were considered as the hearing progressed. As the transcripts of 5 April 2017 and 18 and 19 July 2017 make clear, other matters were interposed during the course of the hearing with respect to the Plaintiff’s subpoenas.

2. [25]

   The Magistrate’s reasons were given ex tempore in a busy Local Court. They should not be picked over, with appropriate allowance to be given to the pressures under which Magistrates are placed by the volume of cases coming before them: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343 at 407-408 [15].

The Defendants’ Position

1. [26]

   In summary, the Defendants:

2. [27]

   Given that the matter was fully argued, I am satisfied that the Plaintiff should be granted leave to rely upon the Amended Summons. I will determine the application for leave to appeal by reference to the grounds contained in the Amended Summons.

The Subpoenas Directed to the Commissioner of Police

1. [28]

   On 9 March 2017, the Plaintiff filed a subpoena for production seeking documents from the Commissioner of Police (Subpoena No. 2080) which came before the Magistrate on 5 April 2017. Subpoena 2080 sought production of the following items (certain identifiers have been omitted):

2. [29]

   On 5 April 2017, the Magistrate heard submissions with respect to an objection to production upon the basis that this subpoena was too wide (T8, 5 April 2017).

3. [30]

   During the course of submissions, her Honour pointed (understandably) to the breadth of the subpoena and suggested that the Plaintiff “redraft the subpoena” directed to the Commissioner of Police to narrow it in various respects to which the Plaintiff responded “I will narrow the search” and, a little later, “I shall do that” (T8-9, 5 April 2017).

4. [31]

   On 5 April 2017, the Magistrate also made rulings on objections with respect to the subpoena directed to RNSH, to which I will return.

5. [32]

   On 3 July 2017, the Plaintiff caused to be issued two further subpoenas for production directed to the Commissioner of Police (Subpoenas 5465 and 5466).

6. [33]

   Subpoena 5465 was in the following terms (certain identifiers have been omitted):

7. [34]

   Ms Ravesi and Ms Corkeron are to be called as prosecution witnesses at the hearing of the assault charge against the Plaintiff. From documents tendered by the Plaintiff (Exhibit A), it appears that Ms Ravesi will give evidence of complaint made to her by Ms Franklin concerning the alleged assault. Ms Ravesi is a Program Manager at Dianella Cottage, a women’s non-residential drug and alcohol treatment service which specialises in working with trauma. It appears that Ms Corkeron (who knows Ms Franklin from dance teaching) will also give evidence of complaint made to her by Ms Franklin concerning the alleged assault.

8. [35]

   Subpoena 5466 should be understood as a revised version of Subpoena 2080. Subpoena 5466 sought production of the following items (certain identifiers have been omitted):

9. [36]

   Various documents were produced to the Plaintiff by the Second Defendant with respect to these subpoenas in advance of the hearing on 18 and 19 July 2017. On those days, the Magistrate heard submissions and made rulings granting access to some documents and refusing access to other documents requested under the subpoenas.

Challenges Arising from the Hearing on 5 April 2017

1. [37]

   In the Amended Summons, the Plaintiff asserted that her Honour erred in law on 5 April 2017 upon the following grounds:

2. [38]

   Given the nature of the application to this Court, I propose to deal with these grounds briefly.

3. [39]

   With respect to the subpoena directed to the RNSH, documents were produced to the Court and written objection was apparently taken by the RNSH on the grounds of absence of legitimate forensic purpose (T4-5, 5 April 2017). It is notable that the Police Prosecutor was not called upon to address on this subpoena. The Plaintiff was given an opportunity to outline the suggested legitimate forensic purpose and he made submissions in that respect (T5ff, 5 April 2017). The presiding Magistrate upheld the objection (T7-8, 5 April 2017).

4. [40]

   I have noted earlier that the RNSH (or any relevant health entity) is not a party to these proceedings. The Plaintiff urged the Court, in his submissions in reply on 10 November 2017 (T52-53), to make an order under Part 51B Rule 10(4) Supreme Court Rules 1970 joining the RNSH as a party to the proceedings. If the Plaintiff wished to challenge the Magistrate’s ruling with respect to the RNSH subpoena, he should have joined that entity as a party at an early point in the proceedings. He did not do so. It is not appropriate for the Court to direct joinder at the very end of the hearing before this Court. In any event, I detect no error of law in the approach of the Magistrate to the subpoena directed to that entity, nor has any basis been demonstrated for a grant of leave concerning that subpoena.

5. [41]

   I turn to the subpoena directed to the Commissioner of Police (Subpoena 2080).

6. [42]

   With respect to Ground (a), I agree with the submission for the Defendants that the ground is misconceived. A number of documents had been provided to the Plaintiff in response to the subpoena. There was an objection taken upon the basis that the subpoena was too wide. The Magistrate agreed except with respect to documents produced in relation to the criminal history of the Plaintiff’s wife with access to those documents being granted (T8, 5 April 2017). The Magistrate also granted access to other documents (T9-10, 5 April 2017).

7. [43]

   As noted earlier, the Magistrate referred (correctly) to the breadth of the subpoena and invited the Plaintiff to redraft it with the Plaintiff agreeing to “narrow the search” (T9, 5 April 2017). Her Honour extended the return date with respect to subpoenas directed to other persons to 27 June 2017 and informed the Plaintiff that he could reissue the subpoena directly to the Commissioner of Police with the same return date (T11, T17, 5 April 2017).

8. [44]

   With respect to Grounds (b), (d) and (e), these grounds appear to relate to documents in the possession of the RNSH. I have noted earlier that that entity is not a party to these proceedings and, in any event, I detect no error in the Magistrate’s approach to that subpoena or a proper basis for a grant of leave.

9. [45]

   To the extent that these grounds are said to relate to Subpoena 2080, I do not accept that submission. In any event, the Plaintiff elected to reissue a further subpoena directed to the Commissioner of Police which was expressed in narrower terms.

10. [46]

    I refuse the Plaintiff leave to appeal with respect to the grounds which relate to the Local Court hearing on 5 April 2017. No error of law has been identified and, in any event, no proper basis has been identified for a grant of leave to the Plaintiff to rely upon any of these grounds.

Challenges Arising from the Hearing on 18 and 19 July 2017

1. [47]

   On the application of the Plaintiff, Subpoena 5466 was issued in the Balmain Local Court on 3 July 2017 directed to the Commissioner of Police (relating to Ms Franklin and police officers). On the same day, Subpoena 5465 issued directed to the Commissioner of Police (relating to Ms Ravesi and Ms Corkeron).

2. [48]

   On 11 July 2017, the Plaintiff was informed that objection was to be taken by the Defendants upon the grounds of absence of legitimate forensic purpose and public interest immunity.

3. [49]

   Mr Bhalla, of counsel, appeared for the First Defendant on 18 and 19 July 2017. He provided to the Magistrate a thorough and helpful written submission dated 17 July 2017 which was served on the Plaintiff (Annexure K, affidavit of Plaintiff sworn 3 August 2017). That written submission contained a summary of principles with respect to, amongst other things, legitimate forensic purpose and public interest immunity.

4. [50]

   In support of the claim for public interest immunity, open and confidential affidavits of Acting Assistant Commissioner Mark Jones sworn 17 July 2017 were provided to the Magistrate. The open affidavit of Acting Assistant Commissioner Jones was served on the Plaintiff (Annexure J, affidavit of Plaintiff sworn 3 August 2017).

5. [51]

   The Plaintiff relied upon the following grounds of appeal with respect to decisions made on 18 and 19 July 2017:

6. [52]

   At the hearing in this Court, the Plaintiff made submissions with respect to each of the proposed grounds of appeal which he pressed. For the purpose of determining the present application, it is not necessary to recite the arguments which were put orally and in writing on behalf of the Plaintiff and the Defendants. It is appropriate to move directly to consider the proposed grounds of appeal.

7. [53]

   At the outset, I note that the hearing proceeded over two days (with interruptions as other matters were interposed). The hearing was fluid with discussions on 18 July 2017 to be understood upon the basis that the Magistrate then examined documents overnight (no doubt, in conjunction with Mr Bhalla’s written submission). Her Honour said at the commencement of proceedings on 19 July 2017 (T1, 19 July 2017):

8. [54]

   The criticisms made by the Plaintiff of aspects of the proceedings on 18 July 2017 should be understood in this light. The discussions on 18 July 2017 should be considered as a preamble to the ruling made at the commencement of the proceedings on the second day, 19 July 2017.

9. [55]

   The Magistrate applied the correct test of legitimate forensic purpose. The onus lay upon the Plaintiff to identify expressly and precisely the legitimate forensic purpose for which access to the documents was sought: R v Saleam (1989) 16 NSWLR 14 at 18; Principal Registrar of Supreme Court v Tastan (1994) 75 A Crim R 498 at 504; Commissioner of Police v Tuxford [2002] NSWCA 139 at [22]. It was for the Plaintiff to show not merely that documents might be relevant. The documents sought must be relevant in the sense that they will assist the Plaintiff’s case: Carroll v Attorney General for NSW (1993) 70 A Crim R 162 at 181-182; Attorney General for NSW v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 at 550-551 [59]-[63]. In addition, it was for the Plaintiff to establish that it was “on the cards” that the documents sought would materially assist his case: R v Saleam [1999] NSWCCA 86 at [11]; Attorney General for NSW v Chidgey at 550-551 [58]-[60]; Perish v R [2015] NSWCCA 237 at [56]-[57].

10. [56]

    With respect to Ground (iii), the Plaintiff indicated to the Magistrate that he wished to challenge the credit of Ms Franklin, Ms Ravesi and Ms Corkeron in cross-examination (T5-6, 18 July 2017).

11. [57]

    It should be kept in mind that Ms Ravesi and Ms Corkeron are to be witnesses as to complaint by Ms Franklin (see [34] above). The Magistrate was alive to this factor.

12. [58]

    The Magistrate examined the documents which had been produced (T10, T12, 18 July 2017). The only record held by police with respect to Ms Ravesi was in relation to her involvement in a motor vehicle accident which was not caught by the forensic purpose identified by the Plaintiff (T5, 18 July 2017).

13. [59]

    Documents were produced and shown to the Magistrate with respect to Ms Corkeron. Having examined the documents, her Honour determined that it was not on the cards that those documents would assist the Plaintiff’s defence.

14. [60]

    Mr Franklin argued (in support of Ground (iii)) that the Magistrate had erred by ruling that seeking documents for the purpose of cross-examination of a witness on credit did not constitute a legitimate forensic purpose. It is clear that the production of documents intended to be used solely to impeach the credit of a witness may be a legitimate forensic purpose: Liristis v Gadelrabb [2009] NSWSC 441 at [5]; Mackintosh v Commissioner of Police (NSW) at [16]-[17]. However, I am not persuaded that the decision of the Magistrate, when fairly read, reveals error of that type.

15. [61]

    The passages to which the Court was taken in the Local Court transcript (T6-7, T10-11, 18 July 2017) reflect the Magistrate’s view that the Plaintiff had not made good the “on the cards” test with respect to issues concerning Ms Ravesi and Ms Corkeron. Her Honour was not saying that production of documents relating solely to credit could not constitute a legitimate forensic purpose. Her Honour was applying the correct legal principles (set out at [55] above) to the circumstances of this case before rejecting the Plaintiff’s submission. No error of law is demonstrated in this respect.

16. [62]

    With respect to Ground (ii) (concerning legitimate forensic purpose), the Magistrate heard the Plaintiff on 18 July 2017 on these matters and made a final ruling on 19 July 2017 as indicated earlier (at [53]). No error of law has been demonstrated in accordance with this ground, let alone a proper basis for the Court granting the Plaintiff leave to appeal.

17. [63]

    The Plaintiff contended (in support of Ground (iv)), that the Magistrate had ruled that documents need not be produced if they would not be admissible in evidence at the final hearing. Once again, it is not in doubt that a legitimate forensic purpose may arise with respect to a document even if the document itself would be inadmissible in proceedings: R v Saleam (1989) at 22. I am not persuaded, however, that a fair reading of the Magistrate’s rulings demonstrates that such an error occurred in this case.

18. [64]

    The only document in respect of which the Magistrate made any comment about inadmissibility was a “Crime Stoppers” report, which was the subject of a claim for public interest immunity by the First Defendant. The Magistrate read the document and upheld the claim of public interest immunity with respect to it (T10, 19 July 2017). It is not correct, as asserted in Ground (iv), that the Magistrate made this ruling by reference to legitimate forensic purpose. Having heard the public interest immunity claim in closed court, the Magistrate ruled on the claim in open court in the following way (T10, 19 July 2017):

19. [65]

    It has not been demonstrated that the Magistrate erred in law in this respect nor has any basis been demonstrated for a grant of leave to argue this ground.

20. [66]

    There is no foundation for a grant of leave to allow Ground (ii) to go forward with respect to public interest immunity.

21. [67]

    With respect to Grounds (v) and (vi) concerning public interest immunity, the Magistrate accepted a submission for the First Defendant that the application should proceed in closed court (T8-10, 19 July 2017). The Court was closed for some 22 minutes, a transcript of which is not available. Upon resumption in open court, the Magistrate gave her decision (see [64] above). Her Honour’s judgment was expressed in general terms in a manner which maintained confidentiality of the material which was the subject of the claim: R v Francis (2004) 145 A Crim R 233; [2004] NSWCCA 85 at 237 [31]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; [2008] HCA 4 at 596 [185].

22. [68]

    In accordance with usual practice, the confidential material in support of the claim for public interest immunity was not made available to the Plaintiff: R v Meissner (1994) 76 A Crim R 81 at 84-85. However, the Plaintiff had the benefit of the open affidavit of Acting Assistant Commissioner Jones and Mr Bhalla’s written submissions which addressed the public interest immunity claim at paragraphs 21-58.

23. [69]

    The Plaintiff cannot know what occurred in his absence with respect to consideration of this claim. What is clear, however, is that the Magistrate inspected the document that was the subject of the claim for public interest immunity as it was annexed to the confidential affidavit that her Honour considered (T2, 18 July 2017). Having read the confidential affidavit, her Honour found its contents to be persuasive (T8, 19 July 2017). Her Honour then ruled on the matter in open court in the presence of the Plaintiff (see [64] above).

24. [70]

    Ground (v) complains about the procedure utilised by the Magistrate in hearing the public interest immunity claim. The Plaintiff contended in this Court that the approach adopted by the Magistrate was contrary to law.

25. [71]

    The approach adopted by the Magistrate with respect to the hearing of the public interest claim in closed court was both available and appropriate and utilised the procedure referred to by the Court of Criminal Appeal in R v Francis at 237 [21] (see also R v Qaumi and Ors (No. 11) [2016] NSWSC 252 at [11]). The Court was closed and all persons left the courtroom with the exception of the Magistrate, court staff and the Commissioner’s representatives so as to permit a franker discussion of the issues raised by the First Defendant’s confidential evidence.

26. [72]

    Generally speaking, if it is possible to consider a claim of public interest immunity without closing the court, then that is a preferable course. The open justice principle should be restricted only as far as is necessary: Jaffarie v Director-General of Security (2014) 226 FCR 505; [2014] FCAFC 102 at 514-515 [27]. That said, it is necessary that oral argument made in open court in support of a claim of public interest immunity not itself disclose confidential material.

27. [73]

    Section 130 Evidence Act 1995 applied to the public interest immunity claim by virtue of s.131A of that Act which applies s.130, with necessary modifications, to preliminary proceedings involving disclosure requirements such as subpoenas. A corollary of a court’s ability to receive confidential evidence is that the court can also receive confidential submissions orally or in writing in accordance with its ability to “inform itself in any way it thinks fit” for the purpose of s.130(3) of the Act: Attorney General (NSW) v Kaddour and Turkmani [2001] NSWCCA 456 at [20].

28. [74]

    No error of law has been identified in this respect, nor has any proper basis been demonstrated for allowing the Plaintiff leave to advance Ground (v).

29. [75]

    Ground (vi)(a)-(d) involves various contentions with respect to the Magistrate’s determination of the claim for public interest immunity.

30. [76]

    The ruling of the Magistrate with respect to the public interest immunity claim has been set out earlier (at [64]).

31. [77]

    In approaching this ground, I keep in mind what was said (at [24]-[25] above) concerning an appeal from an ex tempore judgment on a matter of practice and procedure in the Local Court. By the time the Magistrate ruled on the public interest immunity claim on 19 July 2017, the Plaintiff had been given ample opportunity to identify the aspects which he sought to be taken into account on his proposed use of documents if access was granted. Her Honour utilised accepted procedures for determination of the public interest immunity claim involving receipt of confidential evidence and the making of submissions in closed court.

32. [78]

    Mr Bhalla noted that the Magistrate had said (shortly before the closed court session) that s.130 Evidence Act 1995 did not apply to the public interest immunity claim (T8, 19 July 2017). I accept that this was a mistake on the part of the Magistrate which no doubt arose from her reading of R v Francis at 236-237 [16], a case decided before the enactment of s.131A Evidence Act 1995. However, it should not be taken that her Honour maintained this approach during the closed court session given the written submissions of counsel which referred to s.130 in the context of the public interest immunity claim (paragraph 22ff). In any event, Courts have said that there is no material difference between s.130 and relevant common law principles: State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 at [42]ff; Ryan v State of Victoria [2015] VSCA 353 at [58]ff.

33. [79]

    The Plaintiff has not demonstrated that the Magistrate fell into legal error in her approach to resolution of the public interest immunity claim.

Conclusion

1. [80]

   Despite the limited avenue of appeal to this Court, I provided the Plaintiff with ample opportunity at the hearing on 2 and 10 November 2017 to advance arguments in support of his claim for relief. I have considered those arguments in this judgment, perhaps in greater detail than is called for by the limited statutory avenue of appeal which is available. One reason for taking this approach was to resolve what appeared to be a heavily litigated issue by the Plaintiff at the interlocutory level ahead of the summary hearing in the Local Court. It is appropriate that the way be cleared for the hearing and determination of the charge against him.

2. [81]

   No error of law has been demonstrated with respect to the decisions under challenge in this Court. In any event, no proper basis has been demonstrated for a grant of leave to appeal to the Plaintiff with respect to the Magistrate’s decisions on the subpoena issues. No error of principle has been demonstrated, let alone one which is apt to cause any irregularity or injustice (see [22] above).

3. [82]

   In the event that the Amended Summons was dismissed, the Defendants sought an order for costs against the Plaintiff. On the face of it, the usual rule should apply and costs should follow the event: Rule 42.1 Uniform Civil Procedure Rules 2005. However, the Court indicated at the conclusion of the hearing that the parties would be given an opportunity to make submissions as to costs. I will allow the Plaintiff seven days from today to provide a short written submission (not exceeding four pages) as to why costs should not follow the event in this case. If necessary, I will allow the Defendants time to reply to any submission from the Plaintiff concerning costs. I will determine the costs issue on the papers without the need for a further hearing.

4. [83]

   I make the following orders: