Lawrence v Commissioner of Corrective Services

1. [1]

   The plaintiff seeks a review of the decision of Registrar Jones made on 23 March 2024 setting aside a subpoena issued by the plaintiff on 1 December 2023.

2. [2]

   The notice of motion filed by the plaintiff on 8 April 2024 seeks that the order made by the Registrar be set aside and that an order be made pursuant to s 23 of the Supreme Court Act 1970 (NSW) and rr 2.1 and 33.6(4) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the subpoena is to be complied with.

3. [3]

   The notice of motion also seeks an order that the defendants pay the plaintiff’s costs of the motion, that they pay the plaintiff’s costs thrown away by non-compliance with the subpoena and an order that the Registrar is to refrain from making orders as to costs in the proceedings until the present notice of motion is determined. The last order arises because the Registrar granted the parties liberty to restore the matter within 14 days to make submissions on costs but went on to provide that in the absence of the matter being restored during that period, the plaintiff was to pay the defendant’s costs of the notice of motion. Since it does not appear that the matter was restored to the Registrar’s list within 14 days, the effect of what the Registrar provided must be that an order has been made for the plaintiff to pay the defendant’s costs of the notice of motion that brought the matter before the Registrar.

4. [4]

   The application was heard on 26 June 2024. Counsel for the plaintiff sought leave to file supplementary submissions on the question concerning the futility of making an order in the nature of certiorari or a declaration where each of the challenged decisions was no longer in force for one reason or another. Those submissions were filed on 5 July 2024. The defendant’s submissions in reply were filed 9 July 2024. The proceedings are listed for final hearing on 30 and 31 July 2024.

Background

1. [5]

   On 18 February 2021, the plaintiff was charged with terrorism-related offences with the intended target of the terrorism plot being employees of the Department of Corrective Services. On 27 November 2021, whilst on remand for the offences, the plaintiff suffered catastrophic injuries during the use of force in an incident at the High Risk Management Correctional Centre at Goulburn. He is now a tetraplegic.

2. [6]

   Between 27 November 2021 and 27 January 2023 he was an in-patient at the spinal injuries unit at Prince of Wales Hospital while he was on bail relating to his treatment. On 28 January 2023, his bail was revoked and he was detained at Long Bay Correctional Centre. Whilst he was held at that facility, three decisions were made under ss 10 and 11 of the Crimes (Administration of Sentences) Act 1999 (NSW) with respect to the plaintiff as follows:

3. [7]

   On 30 May 2023, the protective custody decision of 12 May 2023 was revoked. The decision made 30 June 2023 expired after 14 days and the decision made 12 July 2023 was revoked on 14 September 2023.

4. [8]

   The plaintiff commenced the present proceedings on 29 August 2023 challenging those decisions. The proceedings are administrative law review proceedings under Part 59 of the UCPR. The present form of the summons is a further amended summons filed 30 October 2023. That was the form of the summons that was before the Registrar.

5. [9]

   The further amended summons seeks an order in the nature of certiorari quashing the decisions. The summons also seeks an order in the nature of mandamus that the second defendant supply the plaintiff with necessary medical attendance, treatment and medicine pursuant to s 72A of the Crimes (Administration of Sentences) Act 1999 (NSW). In the alternative, the summons seeks habeus corpus that the plaintiff’s current medical treatment at Long Bay Hospital Correctional Centre be amended to provide him with medical treatment necessary for the preservation of his health, including by adequate daily carers assistance, adequate monitoring and treatment of the plaintiff for episodes of autonomic dysreflexia and adequate physiotherapy and/or otherwise providing him with medical treatment in compliance with the provisions of the Crimes (Administration of Sentences) Act and the Crimes (Administration of Sentences) Regulation 2014 (NSW). The summons also seeks declaratory relief that the plaintiff’s placement in protective custody on 12 May 2023, that his segregation commencing 30 June 2023 and its continuation on 12 July 2023 was unlawful and that his medical treatment in Long Bay Hospital Correctional Centre from 27 January 2023 to the present has been contrary to the Act, the Regulations and is unlawful.

6. [10]

   On the day the original summons was filed, the plaintiff’s solicitor also filed and served a notice of motion seeking discovery, without seeking or having sought the leave of the Court pursuant to r 59.7(4) of the UCPR.

7. [11]

   On 15 September 2023, the solicitor from the Crown Solicitor’s Office, acting for the defendants, advised the plaintiff’s solicitor that the segregation order (being the decisions of 30 June and 12 July 2023), had been revoked on 14 September 2023. On 18 September 2023, the plaintiff’s solicitor forwarded an amended summons together with a request for “statements of reasons” pursuant to r 59.9 of the UCPR, and advised that the plaintiff intended to press his application for relief in respect of the three decisions notwithstanding their revocation.

8. [12]

   On 20 October 2023, statements of reasons were served by the defendants. The statements of reasons attached documents referred to in the reasons.

9. [13]

   On 30 October 2023, the further amended summons was filed and served.

10. [14]

    On 23 November 2023, the plaintiff was sentenced by Ierace J in respect of the terrorism-related offences. He is first eligible for parole on 22 November 2025.

11. [15]

    On 1 December 2023, the solicitor for the plaintiff advised that the plaintiff did not intend to press his notice of motion for discovery, and enclosed the subpoena filed on 1 December 2023, the subject of the present motion. The subpoena is attached as an annexure to this judgment.

The Registrar’s Decision

1. [16]

   The plaintiff had argued before the Registrar that the credit of the decision- makers was a significant matter to be tested and determined at the final hearing. It was chiefly for that reason that the plaintiff required the documents identified in the subpoena.

2. [17]

   The Registrar held that the material sought in the subpoena must have the capacity to throw light on the issues of the main case. The Registrar relied on what was said in Trade Practices Commission v Arnotts (Limited) No 2 (1989) 103 ALR 90; [1989] FCA 340, Portal Software v Bodsworth [2005] NSWSC 1115 and One Tel (in liq) – SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 at [31].

3. [18]

   The Registrar held that no issue was identified in the pleadings in relation to the credit of the relevant persons. The Registrar did not accept the plaintiff’s submission that the fact that statements of reasons were drafted some months after the decisions somehow put into question the credibility of the decision- makers due to a purported potential for them to tailor their reasons to justify their decisions. In that regard, the Registrar relied on what was said in Thomas v SMP (International) (No 2) [2010] NSWSC 870 at [19].

4. [19]

   The Registrar did not accept the plaintiff’s submissions that the decision in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (“Blacktown City Council;”) gave support for the issuing of a subpoena to obtain documents going to credit.

5. [20]

   The Registrar also considered the subpoena was too broad and oppressive because it would require a manual review of a large number of documents to establish whether they related to such things as the plaintiff’s conduct. It would also require the officials to search and produce records from their personal devices in relation to a wide range of subject matters and covering the relevant period.

6. [21]

   The Registrar said it was not the role of the Court to re-draft subpoenas that are an abuse of process, relying on Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 at [25].

7. [22]

   For those reasons, the Registrar held that the subpoena should be set aside.

Review of a Registrar’s Decision

1. [23]

   The power to review a Registrar’s decision is contained in r 49.19 of the UCPR which relevantly provides:

2. [24]

   The proper approach to exercising the review power contained in that rule is set out in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369, where Basten JA (Ipp JA agreeing and Hodgson JA agreeing with additional reasons) said:

3. [25]

   Justice Hodgson (with whose additional remarks Ipp JA agreed) said:

4. [26]

   In Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndam Chemicals [2012] NSWSC 935, Hallen AsJ (as his Honour then was) set out relevant principles from various authorities relating to the nature of a review of a Registrar’s decision as follows:

Submissions

1. [27]

   The plaintiff submitted that the statements of reasons by the decision-makers were prepared after the substantive proceedings were commenced by the filing of the summons on 29 August 2023 and in response to orders made by the Court pursuant to r 59.9 UCPR. The plaintiff submitted that most of the documents requested by the subpoena relate to the circumstances surrounding the preparation of those statements of reasons and the reasonableness of the decision-making processes to which they attest. The plaintiff submitted that, in seeking the documents, he is attempting both to establish that the statements do not correspond with the true reasons or processes according to which the three decisions were made and, perhaps in the alternative, to establish that the processes adopted by the relevant decision-makers were unreasonable.

2. [28]

   In his written submissions, the plaintiff has classified the documents he seeks into seven categories. The submissions describe them in this way:

3. [29]

   The plaintiff submitted that the Registrar was in error in relying on what was said in Thomas for her conclusion that the plaintiff could not seek the production of documents concerning the decision-makers’ credibility. The plaintiff submitted that it was not required to plead issues of credibility. He submitted that where the credibility of a witness is or is likely to be a material issue in a proceeding, a subpoena will likely have a legitimate forensic purpose. The plaintiffs submitted that only some of the documents in the subpoena concern “only” the issue of the decision makers’ credibility.

4. [30]

   The plaintiff submitted that credibility is relevant to the issues of the decisions being legally unreasonable or affected by legal error. That is because the credibility issues will have significance for the underlying factual issues in the proceedings.

5. [31]

   The plaintiff submitted that the vast preponderance of the documents requested in the subpoena go to establishing the decision-making processes the subject of judicial review.

6. [32]

   The plaintiff submitted that the Registrar was in error in determining that the subpoena was too broad and oppressive because it would require a manual review of a large number of documents to establish whether they related to such things as the plaintiff’s conduct. The plaintiff submitted that the fundamental basis of oppression is that the recipient of a subpoena is unclear as to the documents they are to search for and produce in response to the subpoena. If a subpoena calls for a large number of documents it will be unduly burdensome only if it requires production of many documents that are insufficiently relevant to the litigation.

7. [33]

   The defendant submitted that the invocation of the Court’s power in administrative review proceedings was exceptional, and attention was drawn to r 59.7 UCPR.

8. [34]

   The defendant submitted that the plaintiff has made no real attempt to demonstrate that the documents will materially assist on the issues to be decided. The defendant submitted that there is no reason to think that seeking the further swathe of documents is likely to shed any further light on the decision-making process.

9. [35]

   The defendant submitted that the subpoena is oppressive for the amount and type of documents sought, and compliance would be unduly onerous. In any event, it is being used as a substitute for discovery, with the notice of motion filed for discovery with he summons attesting to that.

Consideration

1. [36]

   The plaintiff’s arguments are ultimately based on a misapprehension of how administrative law proceedings are conducted. The Court’s power derives from s 69 of the Supreme Court Act 1970 (NSW), and subs (3) provides that for an order in the nature of certiorari, an error of law that appears on the face of the record must be shown. The “face of the record” includes, by subs (4) the reasons expressed by the decision-maker.

2. [37]

   The plaintiff intends to challenge the decisions on the basis of legal unreasonableness. What constitutes legal unreasonableness is discussed in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [65]-[76]. As the judgment of Hayne, Kiefel and Bell JJ says at [66]:

3. [38]

   They also said at [75]:

4. [39]

   In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Kiefel CJ said:

5. [40]

   The plaintiff made clear that he wants the documents identified in the subpoena to show that the decisions were legally unreasonable. He intends to do that by cross-examining the three decision makers. Some of the challenges will go to the credibility of the decision-makers as categories 3 and 4 make clear.

6. [41]

   Administrative law proceedings are not dealt with by cross-examining the decision makers. They are determined on an analysis of the reasons provided for the decision. Error of law is the key to the enquiry. Whether the decisions are legally unreasonable will be determined having regard to the statutory basis for the decisions (ss 10 and 11 of the Crimes (Administration of Sentences) Act) and the reasons provided by the decision makers. The fact that the reasons were provided after the decisions were made pursuant to a requirement made under r 59.9 of the UCPR does not change the way the proceedings are conducted.

7. [42]

   An investigation into whether the reasons put forward by the decision makers were the “true reasons”, as the plaintiff asserts, is to engage in a merits enquiry about the decisions themselves. For that reason, for example, expert evidence is not ordinarily admissible in judicial review proceedings: North East Forest Alliance Incorporated (INC 1601738) v Forestry Corporation of NSW [2023] NSWLEC 124 at [160].

8. [43]

   Affidavits have not been filed by the decision-makers, nor would that be expected. Their credibility will not be in issue. Their decisions will be determined to be proper and valid decisions unless an error of law is shown, including a finding that the decisions were legally unreasonable. Any declaration made will be made on the same basis because any other basis would amount to a merits-based enquiry.

9. [44]

   Except in two instances, to which I will come, the decision-makers have appropriately annexed to their reasons the documents on which they rely. Legal unreasonableness will be determined on the basis of those documents, the reasons provided and the statutory framework under which the decisions were made.

10. [45]

    Whether a subpoena should be set aside because it involves or amounts to an abuse of process has been comprehensively dealt with in Blacktown City Council. In that case Bell P (as the Chief Justice then was) said:

11. [46]

    Significantly, Bell P also said at [59]:

12. [47]

    The proceedings in Blacktown City Council were Class 3 proceedings in the Land and Environment Court where the Court was not bound by the rules of evidence. That is why the importance of what was said by Bell P at [59] can be seen.

13. [48]

    On the other hand, r 59.7 UCPR provides:

14. [49]

    This rule is a regulatory enactment largely reflecting the way administrative law proceedings have historically been conducted. As a matter of practice, the affidavits to which r 59.7(1) refer will simply contain the decision or decisions challenged, the reasons for the decisions and documents relied upon by the decision makers.

15. [50]

    Administrative law proceedings, like appeals confined to a question of law, are conducted in a wholly different way procedurally, from cases where the parties adduce evidence. In that way, in the ordinary conduct of administrative law proceedings, a party will have considerable difficulty in establishing some legitimate forensic purpose for the documents sought in a subpoena. The fact that a declaration is sought to similar effect as an order in the nature of certiorari does not change that. The form of the declarations sought makes that clear; the decisions are said to be unlawful, not wrong.

16. [51]

    In relation to the decision of Glen Piazza of 12 May 2023, the documents relevant to his decision are annexed to the reasons. The documents sought in paras 1 to 4 of the Subpoena are documents which are only relevant to either or the merits of the decision made or to Mr Piazza’s credibility, or both. In that way, no legitimate forensic purpose is demonstrated.

17. [52]

    In relation to the decision of John Harrison of 30 June 2023, the documents sought in paras 5 and 7 are similarly only relevant to the merits of the decision or the credibility of Mr Harrison. In my opinion, the documents sought in para 6 are in a different category. In paras 15 and 19 of the reasons, Mr Harrison refers to reports he relied on which, except for Annexure B, are not identified. Ordinarily, such documents should be available for scrutiny. In paras 10 and 11 he refers to briefings he received from various people. The subpoena seeks copies of any notes taken during such briefings. If such notes exist, they are relevant to the decision made in circumstances where he clearly relied on those briefings in reaching his decision. The documents sought in para 6d may involve issues of public immunity.

18. [53]

    In relation to the decision of Michael Williams of 12 July 2023, the documents sought in paras 8 and 10 are only relevant to the merits of the decision or to the credibility of Mr Williams.

19. [54]

    The delegation to Mr Williams sought in para 9a is not challenged in the Summons. The OIMS modules sought in 9b are not relevant to the challenges to the decision , but the Case Note reports sought in paras 9c are relevant since they are referred to by him but not annexed.

20. [55]

    The subpoena seeks what are referred to as Kent Dalton documents. Mr Dalton was a Senior Assistant Superintendent at Long Bay Correctional Centre and is referred to in Mr Harrison’s reasons as having provided briefings including a briefing note. He was not a decision maker being challenged. Material sought from him in paragraph 11 only goes to the merits of the decision, or decisions as to matters of credit as the plaintiff’s counsel acknowledged.

21. [56]

    The documents sought in paras 12 to 17 only go to the merits of the decisions or to the credibility of the decision-makers.

22. [57]

    There is, however, a further issue. The three decisions being challenged are no longer in place, two because they have been revoked, and one because it was self-limiting in time. That raises the issue about whether an order in the nature of certiorari is likely to be made because such an order would be futile. Similarly, as a matter of discretion, will a declaration to the same extent be made?

23. [58]

    In Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 the Court said at [25]:

24. [59]

    The plaintiff submitted that what was said by the High Court in Park Oh Ho and Ors v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637; [1989] HCA 54 at least justified the granting of a declaration about the unlawfulness of the decisions. It was submitted further that such a declaration in the present matter would avoid unnecessary litigation on the same issue in subsequent proceedings by the plaintiff for damages.

25. [60]

    If, as the plaintiff submits, the decisions were unlawful and he wishes to claim damages for some form of false imprisonment notwithstanding he is otherwise lawfully imprisoned, it is not at all clear why he needs to undertake the present proceedings in advance of the damages proceedings to have a finding of unlawfulness made. Whether someone’s detention is unlawful is an essential element in a claim for false imprisonment.

26. [61]

    However, I do not consider that it is part of my role to anticipate what the Court hearing the present judicial review proceedings might determine about the futility of granting certiorari or how the discretion might be exercised in granting or refusing a declaration.

27. [62]

    It is true that the Registrar’s decision was one concerning practice and procedure and was one that did not involve the determination of final rights. However, it would normally be expected that those acting for the decision makers would place before the court all relevant documents referred to in the reasons of those decision makers. In relation to Mr Piazza, that has occurred. In relation to Mr Harrison and Mr Williams the subpoena demonstrates a legitimate forensic purpose in seeking documents actually referred to in the reasons but not annexed, and also in seeking contemporaneous notes (if they exist) of what are said to be oral briefings which formed part of the decision-making process.

28. [63]

    The remainder of the documents sought go well beyond what are needed for the proper conduct of the proceedings. No legitimate forensic purpose is demonstrated in respect of the balance of the documents sought.

Conclusion

1. [64]

   The Registrar’s decision should be varied so that the subpoena should be set aside, except in relation to the documents sought in paragraphs 6 and 9c.

2. [65]

   In relation to costs, the plaintiff has been largely unsuccessful. In my opinion, the plaintiff should be ordered to pay 80% of the defendant’s costs both before the Registrar and of the present notice of motion.

3. [66]

   I make the following orders:

   1. (1)

      Pursuant to r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) I vary the order of the Registrar made 23 March 2024 by setting aside the subpoena issued by the plaintiff on1 December 2023 except as to paragraphs 6 and 9c.

   2. (2)

      The Proper Officer, DCJ Legal, Department of Communities and Justice is to produce documents (if any) referred to in paragraphs 6 and 9c subject to any claim for client legal privilege and public immunity by 22 July 2024.

   3. (3)

      In lieu of the costs order made by the Registrar, the plaintiff is to pay 80% of the defendants’ costs of the application before the Registrar.

   4. (4)

      The plaintiff is to pay 80% of the defendants’ costs of the present notice of motion.

4. [1]

   A copy of this subpoena.

Glen Piazza Documents

1. [2]

   Correspondence in the form of emails (and their attachments), text messages and letters sent and received by Glen Piazza in the period 27 January 2023 – date of this subpoena (‘the relevant period’) referring to the following:

2. [3]

   The following documents referred to in, or otherwise related to, the Piazza Statement of Reasons:

3. [4]

   The following documents referred to in, or otherwise related to, the Krishnan Briefing Note, being “Annexure B” of the Piazza Statement of Reasons:

John Harrison Documents

1. [5]

   Correspondence in the form of emails (and their attachments), text messages and letters sent and received by John Harrison in the relevant period referring to the following:

2. [6]

   The following documents referred to in, or otherwise related to, the Harrison Statement of Reasons:

3. [7]

   The following documents referred to in the June Dalton Briefing Note:

Michael Williams Documents

1. [8]

   Correspondence in the form of emails (and their attachments), text messages and letters sent and received by Michael Williams in the relevant period referring to the following:

2. [9]

   The following documents referred to in, or otherwise related to, the Williams Statement of Reasons:

3. [10]

   The following documents referred to in, or otherwise relating to, the July Dalton Briefing Note:

Ken Dalton Documents

1. [11]

   Correspondence in the form of emails (and their attachments), text messages and letters sent and received by Kent Dalton in the relevant period referring to the following:

Additional Documents

1. [12]

   The following Case Note Reports:

2. [13]

   Metadata (including that metadata disclosing access by users and printing by users) of the following documents:

3. [14]

   Draft versions of the following documents:

4. [15]

   The following documents related to revocation of the Plaintiffs segregated custody Direction LBHT221789 (Revocation direction no. on REVLBH1154691) on 14 September 2023 (‘the segregation revocation’):

5. [16]

   The following documents that relate to cell alarms (i.e. “knock ups”) of the Plaintiff for the relevant period (collectively ‘the relevant knock ups’):

6. [17]

   Department policies in-force for the relevant period regarding the following: