Liverpool City Council v Minister for Local Government and Ors (No 2) [2024] NSWLEC 111

Liverpool City Council v Minister for Local Government and Ors (No 2) [2024] NSWLEC 111

The subpoena to the second respondent was set aside because, in light of the respondents' concession that the Interim Report was affected by jurisdictional error, there was no live factual issue on the pleadings to which the second respondent's evidence would be relevant. The conduct of Council in seeking evidence from the second respondent related to unparticularised allegations amounting to a fishing expedition, not supported by a legitimate forensic purpose.

Parties
Respondent on the Motion: Liverpool City Council; Second Applicant on the Motion: Minister for Local Government, Ron Hoenig; First Applicant on the Motion: Brett Whitworth, in his capacity as delegate of the Departmental Chief Executive, Office of Local Government; Third Applicant on the Motion: Kiersten Fishburn, in her capacity as Departmental Chief Executive, Office of Local Government; Fourth Applicant on the Motion: Ross Glover, in his capacity as Commissioner of a Public Inquiry into Liverpool City Council; Fifth Applicant on the Motion: State of New South Wales
Jurisdiction
Australia
Judgment Date
14 August 2024
Procedural Posture
Judicial Review, Class 4 Proceedings / Interlocutory Application to Set Aside Subpoena
Outcome
Subpoena set aside
Legal Topics
Subpoena, Legitimate Forensic Purpose, Abuse of Process, Apparent Relevance
Civil Procedure Subpoena Legitimate Forensic Purpose Abuse of Process Apparent Relevance

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Parties

Liverpool City Council

Respondent on the Motion

Minister for Local Government, Ron Hoenig

Second Applicant on the Motion

Brett Whitworth, in his capacity as delegate of the Departmental Chief Executive, Office of Local Government

First Applicant on the Motion

Kiersten Fishburn, in her capacity as Departmental Chief Executive, Office of Local Government

Third Applicant on the Motion

Ross Glover, in his capacity as Commissioner of a Public Inquiry into Liverpool City Council

Fourth Applicant on the Motion

State of New South Wales

Fifth Applicant on the Motion

Procedural Posture

Judicial Review, Class 4 Proceedings / Interlocutory Application to Set Aside Subpoena

Legal Issues

  1. 1 Whether the subpoena to attend and give evidence issued to the second respondent should be set aside for lack of legitimate forensic purpose or as an abuse of process.

Ratio Decidendi

The subpoena to the second respondent was set aside because, in light of the respondents' concession that the Interim Report was affected by jurisdictional error, there was no live factual issue on the pleadings to which the second respondent's evidence would be relevant. The conduct of Council in seeking evidence from the second respondent related to unparticularised allegations amounting to a fishing expedition, not supported by a legitimate forensic purpose.

Court Disposition

Subpoena set aside

Orders

  • The subpoena to attend to give evidence filed 6 August 2024 by Liverpool City Council be set aside.
  • Costs are reserved.