Aldred v European Hire Cars Pty Ltd & Ors [1999] NSWSC 313

New South Wales Supreme Court CITATION : Aldred v European Hire Cars Pty Ltd & Ors [1999] NSWSC 313 revised - 08/06/99 CURRENT JURISDICTION : Supreme Court FILE NUMBER(S) : 10631/99 HEARING DATE(S) : 6 April 1999 JUDGMENT DATE : 9 April 1999

PARTIES : Jennifer Aldred v European Hire Cars Pty Limited , John Anthony Galluzzo and William Grenville Pierce JUDGMENT OF : at 1

COUNSEL : T. Game SC with D. Jordan (Plaintiff) R. McCrudden (Defendants) Smythe & Mallum (Plaintiff) SOLICITORS : Frank Mercuri (Defendants)

CATCHWORDS : Local Court; Subpoena; Order against person not party to litigation; Legitimate forensic purpose Justices Act 1902 ACTS CITED : Justices Legislation Amendment (Appeals) Act 1998 Supreme Court Act 1970 Criminal Appeal Act 1912 DECISION : Order in Nature of Prohibition Granted

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Friday 9 April 1999

10631/99 - JENNIFER ALDRED v EUROPEAN HIRE CARS PTY LIMITED, JOHN ANTHONY GALLUZZO and WILLIAM GRENVILLE PIERCE

JUDGMENT 1 HIS HONOUR : The plaintiff in this summons was the recipient of a subpoena to produce documents issued in connection with proceedings in the Local Court presided over by the third defendant magistrate in which proceedings the first and second defendants were being prosecuted for alleged offences contrary to the Passenger Transport Act. The foundational informations had been laid by one Brian Scarfe a regional manager of the Department of Transport. The plaintiff Jennifer Aldred is also a regional manager of that department. The subpoena sought production of all files and contents relating to the defendants together with training manuals, instructions, procedure guidelines issued to investigating officers of the Department of Transport for the purpose of conducting the day to day affairs of the officers investigation. 2 The issue raised by the plaintiff in seeking to have the subpoena set aside was the absence of any legitimate forensic purpose. In these proceedings I have been taken to portions of the transcript of the hearing before the third defendant and it is apparent that counsel for the first and second defendants sought to demonstrate legitimate forensic purpose by asserting in effect that the informant was biased against the defendants, that is to say against the defendant who is a natural person in particular and who is, it was stated without demur, the controlling mind of the corporate defendant. It was never intended that the informant be called as a witness in the Local Court proceedings nor, for that matter, was the plaintiff an intended witness. 3 I should record that for reasons earlier given I refused an adjournment of the hearing which was based upon the assertion by counsel that he was taken by surprise by amendments which I had allowed to the originating process. It was common ground that the affidavit material essentially exhibited transcript of the hearing at which counsel and the second defendant were personally present together with other material with which they were necessarily familiar. In the course of an exchange during submissions counsel remarked that he would have considered putting on evidence except that I had refused the adjournment. He did not indicate the nature of any proposed evidence and I record that the application for adjournment was not based upon any expressed wish to tender evidence. 4 I would uphold the contention of senior counsel for the plaintiff that the propositions on behalf of the defendants are misconceived. Although both the plaintiff and the informant were employees of the Department of Transport it does not demonstrate a legitimate forensic purpose for requiring one employee to produce certain documents that another employee may harbour a bias, even less that the issuer of the subpoena has a subjective perception of some bias. It was stated without objection that there were many files relating to the defendants arising I gather out of disputes concerning the utilization of motor vehicles for the transport of so-called celebrities and whether such vehicles had or needed to have requisite hire car registration and authority. 5 As counsel for the defendant stated in the course of submissions, much of the argument in the Local Court centred upon whether the subpoena represented "fishing". For my part, were I sitting at first instance, I would be persuaded that this was the case but my jurisdiction is not so wide as simply to substitute any view of mine for that of the third defendant. 6 Counsel for the defendant submitted that the order requiring compliance with the subpoena was interlocutory in nature and that therefore on discretionary grounds I should refuse relief. Reference was made to the restrictions upon grant of relief by way of statutory prohibition pursuant to s 112 of the Justices Act (as formerly in force) and, by way of analogy, to s 5F of the Criminal Appeal Act. There is an essential difference in that the plaintiff is not a party to the proceedings in the Local Court and so far as her involvement in the litigation is concerned it is limited to the requirement that she obey the subpoena. The ruling was an ultimate determination of the litigation insofar as it concerned her. 7 The relief sought by the plaintiff pursuant to the Amended Summons seeks orders in the nature of certiorari, prohibition or mandamus and relies upon the affirmation of power declared in s 69 of the Supreme Court Act or, alternatively in relation to the lastmentioned, s 65 of that Act. Some legislative background needs to be mentioned. The informations initiating the proceedings in the Local Court were laid in 1998. The relevant orders by the third defendant were made on 28 January 1999. The Justices Legislation Amendment (Appeals) Act 1998 came into force on 1 March 1999. The current proceedings were commenced by summons in this Court issued on 18 March 1999. 8 Senior counsel for the plaintiff observed that the amending statute repealed Pt 5 of the Justices Act and substituted new provisions for appeals against decisions by magistrates whether brought in the Supreme Court, District Court or the Land and Environment Court. He noted that the Act also repealed the remedy in the nature of mandamus available pursuant to s 134 and the prohibition against certiorari under s 146 of the statute in its earlier form. He further noted that the transitional provisions of the Amendment Act preserved proceedings already commenced but not determined before that repeal. These proceedings were commenced as noted, after the repeal. Therefore relief was sought in the manner above described. There is provision in the schedule preserving Pt 5 of the Justices Act as in force before repeal in respect of orders made before that repeal, although s 134 appeared in Pt 6 and Pt 5 was concerned with the earlier procedures of stated case, prohibition and the like. It was however explicitly stated by counsel for the defendants that there was no wish on the part of his clients potentially to expand the litigation by reason of any actual or perceived procedural defect. In the circumstances I am content to deal with the matter accordingly. 9 The short submissions on behalf of the plaintiff were that the following errors of law appear on the face of the record. First, that in a contested hearing, assertions by the second defendant of impropriety on the part of the informant, which were challenged in cross examination, must be accepted if not inherently enforceable. Second, alleged bias on the part of the informant who was not to be called as a witness, was relevant to the question of whether or not there was a legitimate forensic purpose for the subpoena and, third, that assertions by the second defendant and secondhand hearsay were sufficient to establish legitimate forensic purpose. Those errors are abundantly manifest in the recorded exchanges in the transcript. There is not in the conventional sense a detailed judgment consolidating the various matters. I do not hold there should be but, in that circumstance, it is appropriate to examine the expressions of view in the transcript leading to the ruling. In my view the plaintiff is entitled to remedy. 10 It was common ground at the hearing that, despite objection to the subpoena, there had been produced for inspection by the representatives of the defendants some 2000 pages of documentation. This estimate was provided by counsel for the defendants. It would seem appropriate then the order should be made in terms of paragraph 2 of the summons but as the precise form of remedy was not canvassed at the hearing I will reserve liberty to apply. 11 The third defendant is restrained from granting access to any further documents pursuant to the order for production under the subpoena issued at the request of the second defendant dated 13 January 1999. 12 The first and second defendants are ordered to pay the plaintiff's costs of the summons. 13 Liberty to apply in respect of orders until 23 April 1999 upon two days notice to other parties.