CITATION: Hall v State of NSW (Department of Corrective Services) (No 2) [2007] NSWADT 105 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Maddison Hall RESPONDENT State of NSW (Department of Corrective Services) FILE NUMBER: 061008 HEARING DATES: 24 April 2007 SUBMISSIONS CLOSED: 8 May 2007 DATE OF DECISION: 9 May 2007 BEFORE: Britton A - Deputy President CATCHWORDS: summons - set aside summons MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 CASES CITED: Lucas Industries Ltd v Hewitt & Ors (1978) 18 ALR 555 APPLICANT E Raper, barrister REPRESENTATION: RESPONDENT K Nomchong, barrister ORDERS: 1. Paragraph 5 of the Summons to produce documents, issued at the request of the Applicant is set aside; 2. The Applicant is at liberty to arrange for a fresh summons to be issued in accordance with the remarks made in paragraph [30] of these reasons. REASONS FOR DECISION 1 Ms Maddison Hall, the Applicant in these proceedings, is currently serving a custodial sentence at Mulawa Correctional Centre. The substantive proceedings concern a complaint made by Ms Hall to the Anti-Discrimination Board of discrimination on the ground of transgender status and disability. 2 The Respondent applies to the Tribunal to reconsider its decision not to set aside paragraph 5 of the Summons to produce documents issued at the request of Ms Hall, returnable on 9 May 2007. Paragraph 5 reads: Copies of all segregation orders and segregation exit management plans issued by the Governor of Mulawa or her delegate to any inmate segregated for three months or more during the period 1 January 2001 and 30 November 2006. 3 These reasons concern the Respondent's application to set aside paragraph 5. Background to Summons 4 It is necessary to briefly set out the background to the contested Summons. 5 On 19 March 2007 the Tribunal granted the Applicant's request for the issue of a Summons to produce documents directed to Commissioner Ron Woodham. Six categories of documents were sought under the Summons including the paragraph 5 documents described above. 6 On 23 March 2007 the Respondent moved that paragraphs 2, 3, 4, 5 and 6 of the Summons be set aside. 7 That application was listed for hearing on 24 April 2007. Both parties were represented by Counsel. 8 At that hearing the Tribunal was advised that the Respondent no longer pressed its objection to paragraphs 1, 2 and 3 of the Summons but maintained its objection to paragraphs 4, 5 and 6. 9 Paragraphs 4 and 6 are in the following terms: 4. Copies of inmate profile documents for each inmate in Mulawa in the period between 1 January 2001 and 30 November 2006 where the inmate has been the subject of segregation for three months or more. 5. Copies of all documents prepared by officers, employees or agents of the respondent which relate to the decision-making process for segregation orders and their review for any inmate of Mulawa segregated for three months or more during the period 1 January 2001 to 30 November 2006. 10 The Respondent submitted that paragraphs 4, 5 and 6 should be struck out as each was oppressive, had no apparent relevance to the matters to be determined, constituted a 'fishing expedition' and was contrary to public policy considerations. Importantly, the Respondent was concerned that its obligation to protect the privacy of other inmates and staff would be breached. 11 It was submitted for the Applicant that the documents described in the offending paragraphs were relevant and went to key issues that fall to be determined in these proceedings, namely how the treatment the subject of the initiating complaint to the Anti-Discrimination Board, (the subject of the substantive proceedings), compared with that afforded to other inmates. It was argued that that despite the Respondent's contention that the disputed documents were of no apparent relevant to the issues in dispute, some had been annexed to the statement prepared by one of its own witnesses. 12 In addition, it was argued that the Respondent's submission that the offending paragraphs were oppressive was not supported by any evidence despite the fact that the Respondent had been on notice for a significant period about the request for documents. 13 At the conclusion of that hearing I ordered that paragraph 6 be struck from the summons but not paragraphs 4 and 5. I ordered that appropriate measures be taken to protect the confidentiality of inmates and the Respondent's staff. Brief oral reasons were given for that decision. As requested, the parties filed draft consent orders on 1 May 2007 to address the confidentiality issues raised by the Respondent. 14 On 27 April 2007 an affidavit prepared by the solicitor with carriage of the matter for the Respondent, Elisabeth Ball, was filed in the Tribunal. Ms Ball deposed that following the hearing she had made further enquiries and was advised that the number of inmates caught by paragraphs 4 and 5 of the summons was about 42 inmates. She went on to describe the Respondent's record keeping practices and estimated that, based on her most recent enquiries it might take between three to four weeks to locate and collate the material referred to in paragraph 5 of the summons. Ms Ball requested on the basis of that information that the Tribunal revisit its decision concerning paragraph 5 and either set it aside or narrow its scope. 15 Following receipt of Ms Ball's affidavit, the Tribunal wrote to the parties and directed them to confer to see if agreement could be reached on the scope of paragraph 5. The Tribunal pointed out that these discussions would be assisted if the Respondent were able to provide the Applicant with the information requested under paragraph 4. The Tribunal invited the parties to make brief written submissions if agreement could not be reached. 16 The parties did not reach agreement. Both provided the Tribunal with brief written submissions. Submissions 17 It was submitted for the Applicant that the order made on 24 April 2007 should stand. It was argued that the filing of affidavit evidence by the Respondent constitutes a 'complete abuse of the Tribunal's process'. It was asserted that to allow that evidence into the proceedings would be to deny Ms Hall fair process as she was given no warning that it might be relied upon and is now unable to test it through cross-examination. 18 It was pointed out that the Applicant's solicitor had initiated discussions in February in an effort to avoid the delay now being experienced. It is mystifying, argued the Applicant, that the evidence on which the Respondent now relies to support its submission that the Summons is oppressive has only now come to light. It would have been expected, argued the Applicant, that the Respondent would have taken steps to put on the material upon which it now seeks to rely at the hearing listed to determine the strike out motion. 19 It is contended for the Applicant that the Respondent, in seeking to have this matter revisited, is obstructing what should be a 'simple and timely exercise' in discovery and that the 'continued obstruction' is severely impeding her ability to prepare for hearing. 20 The Respondent rejected the criticism that it has attempted to obstruct the proceedings or 'thwart' the Applicant's request for documents. It argued that it is unfair for the Applicant to complain that the affidavit material was filed after the Tribunal handed down its decision as it was she who had objected to evidence being given from the bar table. It pointed out that it foreshadowed at the hearing that it intended to file further evidence to support its submissions that paragraph 5 of the Summons is oppressive. Findings and conclusions 21 I do not intend to revisit the issue of relevance or whether as the Respondent contends the request for the paragraph 5 documents is simply an exercise in 'fishing'. Submissions on those issues were made at the hearing and have been determined. The Respondent's recent affidavit evidence does not go to those issues. 22 It is regrettable that the affidavit evidence on which the Respondent now relies was not provided at the hearing. It goes without saying that had it been the parties would not have been put to the expense and inconvenience of again being required to address the matter. The timing is of particular concern given that the proceedings are scheduled to commence in less than three weeks and allocated hearing dates have been vacated on two occasions. 23 That being said, given the affidavit evidence, it is my view that the decision in respect of paragraph 5 of the Summons must be revisited. Evidence has now been given that the enforcement of paragraph 5 is oppressive and in the circumstances must be taken to into account even if it comes late in the day. 24 The principles concerning a Summons are well known. It must not require the recipient to undertake a search of an excessively large number of documents. In Lucas Industries Ltd v Hewitt & Ors (1978) 18 ALR 555 at 570 the issue was expressed by Smithers J as one requiring an assessment of the reasonableness of the burden on the recipient. His Honour said: Assessment of the reasonableness of burdens involved in complying with a subpoena must take account, inter alia, of the desirability that justice be administered effectively. The capacity of a party to collect and provide the documents referred to is a relevant circumstance. Large business entities may be thought to be highly organised and well staffed. What may be burdensome to lesser entities may be of small significance to a large one. 25 The process in respect to the issue of a Summons is meant to be fair to all parties. It is not an abuse of process for a party adversely affected by an order of the Tribunal to seek to vary that order. Any significant prejudice that might accompany such application can be cured in other ways. 26 Having regard to Ms Ball's evidence it now appears to me that the Summons is cast very wide and given the self-evident oppression compliance would cause, the paragraph should be either set aside or amended. 27 The parties have been unable to resolve the disputed question. 28 The Respondent's primary submission is that paragraph 5 is oppressive and should be set aside. In the alternative it suggests narrowing the scope of documents sought to those relating to inmates segregated by reason that they posed a risk to the safety of other inmates and for a time period of 12 or 18 months (concluding at 19 May 2006, the last day of the complaint period the subject of these proceedings). 29 At hearing Counsel for the Applicant addressed the reasons why a proposal along those lines was overly restrictive. She advised that she had been instructed that there were only a very few inmates who been the subject of segregation orders of more than three months throughout the period 2001 to 2006. Accordingly, if the scope of the paragraph was restricted to the period of the complaint, there was a real possibility that no documents would be produced, as there might be no inmates who were subjected to the relevant segregation order during that period. 30 Without the information contained in the documents described in paragraph 4, the task of determining whether it is possible to narrow the scope of paragraph 5 to address the legitimate concerns of the Respondent about the resources it would need to employ to answer the Summons, and at the same time provide to the Applicant the documents of apparent relevance to her case, is difficult. 31 However, it would appear to me that from the evidence provided that the oppression about which the Respondent complains could be cured by confining the documents sought to the longer of the two periods proposed by the Respondent, namely the 18 months to 19 May 2006. I am not satisfied that it is also necessary to further restrict the class of inmates as proposed by the Respondent. 32 The evidence provided by Ms Ball would seem to put to rest the Applicant's concern that if the time period is narrowed as proposed by the Respondent, it might be discovered that no or very few relevant segregation orders were made in that period. That possibility cannot be excluded without the information contained in Paragraph 4, which would reveal when the 42 inmates identified by Ms Ball were made subject to segregation orders. However on what is before me that would seem to be unlikely. In the event that the Applicant's prediction proves to be correct, then the matter may need to be revisited. 33 Despite the unfortunate history to this matter given the evidence now available the inescapable conclusion appears to be that paragraph 5 in its current form is oppressive and therefore must be set aside. Conclusion 34 For the reason as given I propose to set aside paragraph 5 of the Summons. The Applicant is at liberty to arrange for a fresh Summons to be issued in accordance with the remarks made in paragraph [30] of these reasons. 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.