Pi v State of New South Wales (No 2) [2015] NSWSC 1093

Supreme Court New South Wales

Medium Neutral Citation: Pi v State of New South Wales (No 2) [2015] NSWSC 1093 Hearing dates: 5 August 2015 Decision date: 06 August 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The motion as it pertains to subpoenas with regard to Ms Tan is stood over until 18 September 2015. (2) The subpoenas addressed to the University of New South Wales, TAFE NSW and the Roads and Maritime Services with regard to Mr Pi are quashed. (3) Any documents produced in answer to those subpoenas with regard to Mr Pi must be returned. (4) The costs of the proceedings before me are costs in the cause. Catchwords: PRACTICE AND PROCEDURE – subpoenas to produce documents – whether subpoenas should be set aside – whether subpoenas have a legitimate forensic purpose – whether subpoenas are too broad – subpoenas quashed Category: Procedural and other rulings Parties: Guang Hua Pi (First Plaintiff) Holly Tan (Second Plaintiff) State of New South Wales (Defendant) Representation: Counsel: R Bianchi (Defendant)

Solicitors: In person (First Plaintiff) McCabes (Defendant) File Number(s): 2014/00003768

Judgment 1. This is an application bought before me as Duty Judge by Mr Pi, the first plaintiff, on his own behalf and on behalf of Ms Tan, the second plaintiff, seeking to resist a number of subpoenas issued at the request of the defendant. Although Mr Pi has told me that he has consulted a lawyer on occasions, he appeared for himself and Ms Tan. Background 1. To state the background succinctly, by way of a further amended statement of claim of 22 April 2015, Mr Pi claims that he was wrongly arrested by the police on two occasions on 12 and 13 January 2011. His position is that he was falsely imprisoned, and the subject of malicious prosecution. He has made a claim for damages, which includes a claim for past medical expenses, and future economic loss. 2. It can be seen from paras [32]-[34] and [37]-[40] of the further amended statement of claim that his position is that his health, including his psychological health, has been damaged; that he has been unable to return to prior employment as a bus driver; that his studies at the University of New South Wales (UNSW) have been disrupted; and that his studies at TAFE have also been adversely affected. All of that is part of his claim for damages. 3. In the same pleading, there also appears a claim on behalf of Ms Tan. In a nutshell, it is said that she suffered nervous shock as a result of what occurred that evening, and that founds a claim for damages on her behalf as well. 4. As is usual in the case of laypersons trying to comply with complicated procedural rules, there are some alleged problems with the further amended statement of claim. In particular, the question of whether Ms Tan is properly joined as a second plaintiff, and whether Mr Pi should indeed act as her tutor, is to be resolved by way of a separate motion on 18 September 2015. 5. As for that question, the file contains a document of 14 May 2015, whereby Ms Tan appoints Mr Pi as her tutor. From the Bar table (through a Mandarin interpreter), Mr Pi assured me that Ms Tan is mentally unwell, but it continues to be the case that she wishes him to act as her tutor. 6. In light of the unresolved question of the status of Ms Tan in the proceedings, counsel for the defendant gave an undertaking that any documents produced in answer to any subpoena to do with Ms Tan would not be the subject of an application for access by any lawyer acting for the defendant before the hearing of the motion about Ms Tan in September 2015. Mr Pi was content with that undertaking, as was I. 7. It follows that, because it is possible that Ms Tan will no longer be a party after September 2015, and therefore it is possible that documents pertaining to her will have no legitimate forensic purpose, I do not presume to determine that part of the motion at this stage. The question of those parts of the motion before me that pertain to Ms Tan should be stood over to the same date of the hearing of the motion about her status as a party. 8. Turning to the subpoenas that relate to Mr Pi, by the end of the hearing three were pressed and in dispute. The first is addressed to the Roads and Maritime Services (RMS); the second to UNSW; and the third to TAFE NSW at Ultimo. All of them seek to explore the specific claims made by Mr Pi in his further amended statement of claim, and to which I have referred. Speaking generally, it is not difficult to see that each of them has a legitimate forensic purpose, that being the reasonable exploration by the defendant of the claims made by Mr Pi of the detriments he says he has suffered as a result of the events of 12 and 13 January 2011. Submissions 1. Mr Pi, during discussion, did not seek to resist that general proposition. But he made two points. 2. The first was that he is prepared to give the lawyers for the defendant some or all of the documents they seek. So much may be accepted; but merely because a party is content to give to the subpoenaing party documents that he or she claims are those sought in a subpoena addressed to a third party is no reason to set aside that court process. 3. The second submission of Mr Pi was that the subpoenas are too broad. For example, the subpoena addressed to the RMS would capture the entirety of his driving record, perhaps stretching back to when he was a teenager, when in truth what is sought to be explored is the correctness of his claim that he has worked as a bus driver in the past and the events of 12 and 13 January 2011 have meant that he cannot work as a bus driver in the future. Similar criticisms were made of the other pressed subpoenas. 4. In discussion, counsel for the defendant made no submission that Mr Pi did not have standing to impugn these subpoenas addressed to third parties. As I have said, she submitted that each disputed subpoena has a general legitimate forensic purpose, in light of the further amended statement of claim. However, she did not seek to dissuade me from my initial thought that the subpoenas could be too broad, in that they could lead to the production of documents that are personal in nature and have nothing to do with exploring the truthfulness of the specific claims of Mr Pi. She also did not seek to dissuade me from the correctness of the proposition that, if challenged, a subpoenaing party must point to the legitimate forensic purpose of the specifics of a subpoena, and not just its general import. By the end of her oral submissions, she was content if I were to adjust, as it were, each of the subpoenas to make them more relevant to each of the claims of Mr Pi, either by way of a date range, or some other mechanism. Determination 1. Turning to my determination, as I have said counsel for the defendant has identified without difficulty a general legitimate forensic purpose with regard to each of the pressed subpoenas. I also reject the contention of Mr Pi that he can forestall a subpoena addressed to a third party by offering to provide what he says are the same documents. But I think there is force in the proposition that the subpoenas are too broad; as I have said, counsel for the defendant ultimately did not seek to dissuade me from that view. 2. I consider that the subpoenas addressed to UNSW should be quashed, and any documents produced in answer to it returned. If it is not yet the subject of compliance, the solicitors for the defendant should inform UNSW that it does not require compliance. I consider that a further subpoena could be issued with para [2] of the Schedule amended so that a final sentence is added as follows: "The foregoing relates only to the studies of Mr Pi for a Masters of Art at your University". 3. As for the subpoena addressed to the RMS, I consider that it should also be quashed and any documents returned. There would be nothing standing in the way of a subpoena issuing with para [3] of the Schedule in identical terms. But I consider that Schedule 2 should read: "All records and/or documentation relating to the first plaintiff limited to license applications and license suspensions". 4. As for that part of the subpoena addressed to TAFE that relates to the first plaintiff, again I think it should be quashed and any documents returned. But there is no reason why a further subpoena should not be issued with the following sentence added to para [2] of the Schedule: "The foregoing relates only to the studies of Mr Pi for a Diploma of Ceramics". 5. I shall not make formal orders about the fresh subpoenas; this judgment adequately expresses my conclusion as to what would be appropriate. Costs 1. Finally, turning to costs, the parties were agreed that costs of this motion should be in the cause. Orders 1. I make the following orders: 1. The motion as it pertains to subpoenas with regard to Ms Tan is stood over until 18 September 2015. 2. The subpoenas addressed to the University of New South Wales, TAFE NSW and the Roads and Maritime Services with regard to Mr Pi are quashed. 3. Any documents produced in answer to those subpoenas with regard to Mr Pi must be returned. 4. The costs of the proceedings before me are costs in the cause.