Valder v State of New South Wales (No 3) [2013] NSWSC 997

Supreme Court New South Wales

Medium Neutral Citation: Valder v State of New South Wales (No 3) [2013] NSWSC 997 Hearing dates: 23 July 2013 Decision date: 23 July 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Contempt motion dismissed. Plaintiff to pay the defendant's costs. Catchwords: CONTEMPT - whether non-compliance with subpoena - whether subpoenas were issued by any court - costs. Legislation Cited: Supreme Court Rules 1970 Cases Cited: Killen v Lane [1983] 1 NSWLR 171 Category: Interlocutory applications Parties: Valdemar Ian VALDER (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: In person (Plaintiff) M. Hutchings (Defendant) Solicitors: In person (Plaintiff) Henry Davis York (Defendant) File Number(s): 2012/300704

EX TEMPORE Judgment 1Before me is a Notice of Motion filed by the plaintiff, Valdemar Ian Valder, seeking punishment for an alleged contempt of Court said to have been constituted by non-compliance with two subpoenas. As I will explain, there is significant doubt about whether one of the subpoenas was ever issued and, if so, which Court authorised its issue.

Background 2At some point Mr Valder was charged with two offences. He was convicted in the Local Court. He appealed to the District Court. He sought leave to have the District Court receive evidence that was not adduced in the Local Court. His appeal was listed for mention before the District Court on 12 September 2012. On that day his appeal was fixed for hearing on 18 September 2012. Orders were made at the mention for him to serve his evidence upon either the Director of Public Prosecutions or at least a police prosecutor with responsibility for his appeal. 3According to Mr Valder, he attempted to comply with the order by serving his evidence on a police prosecutor located at the Parramatta police station. He claims that he arrived at the police station at about 8.50am on 17 September 2012. He states that the officer who was on duty initially agreed to pass on the material to the prosecutor's office, but then refused to hand that material on. Mr Valder alleges that at the hearing on 18 September 2012 the prosecutor in the District Court denied that they had received his evidence and the appeal proceeded without the benefit of it. His convictions were confirmed and he was placed on a bond. 4On 27 September 2012 Mr Valder commenced civil proceedings in the Local Court against the State of NSW for "negligence". The negligence was said to be constituted by the acts of the officer in charge at the police station for refusing to pass on his evidence to the prosecutor. 5In his oral evidence before me, Mr Valder stated that on 27 September 2012 he applied to the Local Court to issue a subpoena requiring production of the CCTV footage of his attendance at the Parramatta police station. Apparently this application was refused on the basis that it was not the practice to issue subpoenas prior to the filing of a defence. It seems that Mr Valder had learned that the police proposed to erase the CCTV footage of his attendance at the police station. Mr Valder then approached this Court on the same day seeking urgent relief. Orders were made by this Court in the following terms: "1. Mr Valder have leave to issue the subpoena the subject of this application. 2. That an order for short service be made requiring Mr Valder serve the subpoena on the defendant today both by hand and facsimile transmission." 6With respect, it is not clear what is meant by the "subpoena the subject of this application" in order 1. In particular, I can see scope for misunderstanding as to whether that order was authorising the issue of a subpoena out of the Local Court or out of this Court. However on its proper construction it would be extremely unlikely that the order could be referable to a subpoena issued by the Local Court. There is a very significant doubt as to whether this Court has the power to direct the issue of a subpoena out of another Court unless it was following the completion of some formal appeal mechanism, and that application certainly was not of that kind. 7I am satisfied that following that attendance Mr Valder completed a piece of paper which was in the form of a subpoena provided for in the Uniform Civil Procedure Rules 2005. It was purported to be issued in the name of the Local Court and bore the Local Court case number referable to the proceedings he had commenced in that court. In his own handwriting Mr Valder completed a return date of "Wednesday 3 October 2012 9am". 8It is also clear that on 27 September 2012 Mr Valder took that piece of paper and served it on some representative of the NSW Police Service. There is, however, significant doubt as to whether or not that piece of paper was ever stamped by any court and, in that sense, "issued" by any court. There has never been produced before me a copy of that piece of paper bearing a court stamp. 9In his oral evidence Mr Valder stated that he was unsure as to whether, after he attended this Court, he either travelled straight to the Parramatta police station to serve the "subpoena", or attended the Registry of this Court or the Local Court to have the "subpoena" stamped. Mr Valder conceded that it was possible that he simply went to the Parramatta police station and handed the piece of paper to them, and then later told the Local Court that this Court had ordered the issue of a subpoena. That is a course of action a layperson might mistakenly, but reasonably, have understood was comprehended by this Court's orders. 10However, the end result is that I am not satisfied that the document that was served on the police was a document that satisfied Order 1 of this Court's orders of 27 September 2012. For the reasons that I have already suggested, to satisfy Order 1, in my view the document would have had to have been in the form of a subpoena issued out of this Court and returnable in this Court. It would, in the ordinary course, have borne the stamp of this Court. Equally, I am not satisfied that the document that was served on the police constituted a subpoena "issued" by the Local Court. Order 1 did not authorise that course and there is, in my view, no satisfactory evidence capable of establishing either beyond reasonable doubt, or on the balance of probabilities, that the Local Court "issued" that document. 11As I have stated, the purported return date for the subpoena was 3 October 2012 in the Local Court. There was tendered a record of the Local Court indicating that on that day the return date was adjourned to 10 October 2012 and that on 10 October 2012 no documents were produced. These entries are something of a mystery in light of the circumstances in which the "subpoena" was issued. In my view they are probably best explained by the Registry of the Local Court becoming apprised of this Court's order of 27 September 2012 and receiving the document prepared by Mr Valder, then proceeding on the mistaken basis that the document should be treated as a subpoena issued by that Court. That said, there is no evidence that at any time the Local Court itself purported to "issue" an order requiring the production to it of the CCTV footage. 12On 16 October 2012 Mr Valder filed an Amended Statement of Claim in the Local Court expanding his allegations of negligence to include aspects of the alleged failure to produce material in response to the "subpoena" that was purportedly returnable on 3 October 2012. 13On 19 October 2012 Mr Valder filed a Notice of Motion in this Court seeking the punishment of someone for an alleged contempt in respect of the failure to produce material, and also the transfer of his substantive proceedings into this Court. On 12 December 2012 Mr Valder's substantive proceedings in the Local Court were transferred to this Court. 14On 14 March 2013 Mr Valder caused to be issued a subpoena out of this Court for the production of the CCTV footage. This subpoena was returnable on 26 March 2013. 15Regrettably, despite the best efforts of myself and my staff, there is not available today material concerning the course of events in relation to that subpoena. It is clear from statements by Mr Valder from the bar table that at various times he has had access to the material that was produced and, it seems, to the form of the subpoena that was returned by the defendant, however it was not tendered before me. 16On 14 June 2013 the Registrar set down so much of Mr Valder's Notice of Motion filed in October 2012 that sought punishment for contempt for hearing today. 17On 17 July 2013 his Honour Garling J made orders facilitating the hearing of the motion seeking punishment for contempt, including the filing of a statement of charge. The statement of charge was filed on 19 July 2013.