Robinson v Kew, Kew v The Commissioner for Fair Trading [2006] NSWSC 453

New South Wales Supreme Court

CITATION : Robinson v Kew, Kew v The Commissioner for Fair Trading [2006] NSWSC 453

HEARING DATE(S) : 10/04/06

JUDGMENT DATE : 7 June 2006

JUDGMENT OF : James J at 1

CATCHWORDS : CIVIL LAW - practice and procedure - applications to set aside notices to produce - a document or thing relevant to a fact in issue

Crimes Act Crimes (Local Courts Appeal and Review) Act LEGISLATION CITED : Criminal Procedure Act Fair Trading Act Uniform Civil Procedure Rules

CASES CITED : Portal Software v Bodsworth [2005] NSWSC 1115

PARTIES : Stephen Robinson v Michael Owen Kew, Michael Owen Kew v The Commissioner for Fair Trading

FILE NUMBER(S) : SC 15876/05; 14160/05

R Cogswell SC/N Perran - Plaintiff Dr G Flick/S Dewberry - Defendant COUNSEL : Dr G Flick/S Dewberry - Plaintiff R Cogswell SC/N Perran - Defendant

Crown Solicitor's Office - Plaintiff Jemmeson & Fisher - Defendant SOLICITORS : Jemmeson& Fisher - Plaintiff Crown Solicitor's Office - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Wednesday 7 June 2006

14160/05 Michael Owen KEW v THE COMMISSIONER FOR FAIR TRADING & ANOR 15876/05 Stephen ROBINSON v KEW

JUDGMENT 1 HIS HONOUR: These are applications by the Commissioner for Fair Trading and Mr Stephen Robinson, an employee in the Office of Fair Trading, to set aside notices to produce served on the applicants by Michael Owen Kew in proceedings 14160/05 and proceedings 15876/05. In proceedings 14160/05 Mr Kew is the plaintiff and the Commissioner and Mr Robinson are the defendants. In proceedings 15876/05 Mr Robinson is the plaintiff and Mr Kew is the defendant. 2 The only notice to produce included in the evidence adduced at the hearing of the applications was the notice to produce served in proceedings 15876/05. A document annexed to an affidavit sworn in proceedings 14160/05 was (I assume inadvertently) a copy of the notice to produce served in proceedings 15876/05. However, I was informed at the hearing of the applications that the two notices to produce were in identical terms. At times in this judgment it will be convenient to refer to both notices to produce simply as "the notice to produce". 3 The two proceedings between the parties have a long history and it is necessary to set out this history in some detail, in order to understand and determine the issues which arose on the hearing of the applications. History of the Proceedings 4 On 24 September 2004 a number of Court Attendance Notices were issued in the Local Court, charging Mr Kew with offences under s 300(1) and s 300 (2) of the Crimes Act. In each court attendance notice the prosecutor was described as "S Robinson Public Officer for and on behalf of the Commissioner for Fair Trading". 5 On 25 July 2005 the Court Attendance Notices came before a magistrate in a Local Court. Before the magistrate it was submitted on behalf of Mr Kew that neither the Commissioner nor Mr Robinson had power or authority to commence proceedings alleging offences under the Crimes Act. On 27 July 2005 the magistrate made a ruling against this submission. Counsel for Mr Kew informed the magistrate that proceedings would be brought in the Supreme Court challenging the magistrate's ruling and the proceedings in the Local Court were stood over to enable proceedings in the Supreme Court to be brought. 6 In a judgment given by the magistrate on 16 November 2005 the magistrate commented that the argument before him in July 2005 had proceeded on the basis that Mr Robinson did hold a delegation to prosecute from the Commissioner but it was in issue whether the delegation was valid. 7 On 24 August 2005 Mr Kew as the plaintiff commenced proceedings 14160/05 against the Commissioner and Mr Robinson. The substantive relief claimed in the summons was:-