"X" v University of Western Sydney (No 2) [2013] NSWSC 1318

Supreme Court New South Wales

Medium Neutral Citation: "X" v University of Western Sydney (No 2) [2013] NSWSC 1318 Hearing dates: 10 September 2013 Decision date: 10 September 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Application to set aside notice to produce dismissed. Catchwords: PRACTICE AND PROCEDURE - notice to produce - urgent hearing - no question of principle. Legislation Cited: - Criminal Procedure Act 1986 - Evidence Act 1995 - Uniform Civil Procedure Rules 2005 Category: Interlocutory applications Parties: "X" (Plaintiff) University of Western Sydney (Defendant) Representation: Counsel: J.S. Drummond (Plaintiff) Ms R. Graycar (Defendant) Solicitors: Bateman Battersby (Plaintiff) Bartier Perry (Defendant) File Number(s): 2013/272522 Publication restriction: Nil

EX TEMPORE Judgment

On an application to set aside a notice to produce 1This is an application to set aside a notice to produce. The background to the matter is that last Friday I fixed for urgent hearing today a proceeding seeking to challenge a decision to suspend a student from the defendant, the University of Western Sydney ("University"). The basis for the suspension was an allegation that he had engaged in serious misconduct of a sexual nature against another student. I made orders for the exchange of affidavits on a quick timetable, which was complied with. 2One of the foreshadowed submissions of the defendant is that, in effect, the plaintiff, who complains that he did not receive adequate particulars of the allegation of sexual assault made against him, was in fact already fully aware from other sources of what the nature of that allegation is. 3I should add that is not the only point raised by the University. Amongst other matters, it contends that the relevant part of the policy, which requires those particulars to be provided, was not yet engaged. 4In any event, in light of that submission and the contents of the University's affidavits, late last night a notice to produce was sent by the plaintiff to an officer of the defendant seeking the production of material concerning the complaints made by the complainant. 5The plaintiff contends that this material is relevant, in effect, by way of response to the defendant's foreshadowed submission, in that if it is to be contended that the plaintiff knew all the details, then this material would reveal such further details that might in fact be unknown to him. 6A number of issues are taken with the notice to produce. One is that it was directed to a witness, rather than to the University. In a different context, that point would be fairly made, but I will treat it as a notice directed to the University and not the witness. 7The second is that the form of the notice to produce travels beyond r 21 of Uniform Civil Procedure Rules 2005 in that it neither picks up documents alluded to in the affidavits and is otherwise not sufficiently specific. 8There are two answers to that. With some latitude, I think the degree of specificity is acceptable. More significantly, when matters have been fixed as urgently as this one and no order for discovery has been made, the Court has to be concerned to ensure that the strict requirements of the rules do not subvert the rights of the parties to prepare their case properly. In particular, in this case, by reason that the matter has to be heard urgently, the plaintiff has not had the opportunity if he thinks fit to bring an application for discovery. Thus, some looseness in the form of a notice to produce in my submission is, in that context, of little moment. 9The further matter raised was that the notice is oppressive in that it was sent late last night, and on its face it appears to require a wide amount of material. The sending of a notice to produce late the night before the start of an urgent hearing is, in my view, something that happens in the ordinary course of cases that are conducted on an accelerated timetable. 10Otherwise I am told from the Bar table that the relevant officer of the University has compiled some material. That material will suffice to answer the notice to produce without that officer being further distracted before they give evidence or assist in the defence of the case. 11A third matter that is raised is that, on its face, the notice appears to seek material which would fall within the protected confidence provisions found within Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986, which applies to civil proceedings by reason of s 126H of the Evidence Act 1995. In my view, that submission is well founded. Any material that answers the description of recording a protected confidence is not to be produced either to the Court or to the plaintiff. 12However, subject to that exception, the material that has been obtained should be produced to the plaintiff, and I otherwise decline to set aside the notice to produce.