"AZ" v "DQ" & Anor [2005] NSWSC 473

"AZ" v "DQ" & Anor [2005] NSWSC 473

The plaintiff was entitled to unedited versions of documents already supplied and to documents within paragraph (1) of the subpoena to the Commissioner of Police because, particularly as to victims whose period at the school overlapped with or was close in time to the plaintiff's, it was on the cards that the documents would materially assist in establishing what the Department of Education or school authorities knew at the relevant time. The documents sought in paragraphs (2) and (3) of the subpoena lacked a legitimate forensic purpose because the plaintiff sought them only to see whether they might assist his case.

Jurisdiction
Australia
Judgment Date
18 May 2005
Procedural Posture
Review Decision of Registrar Access to Documents / Notice of Motion Filed 23 November 2004 Seeking Review of Assistant Deputy Registrar Howe's Decision of 26 October 2004 Concerning Access to Subpoenaed Documents
Outcome
The Registrar's decision was set aside in part and otherwise affirmed; costs were reserved.
Legal Topics
["review of Registrar's Decision" 'subpoena to Produce Documents' 'access to Documents Produced on Subpoena' 'legitimate Forensic Purpose' 'fishing Expedition' "confidentiality of Victims' Identities" 'alleged Sexual Assault by School Teacher']
['civil Procedure' 'evidence' 'torts'] ["review of Registrar's Decision" 'subpoena to Produce Documents' 'access to Documents Produced on Subpoena' 'legitimate Forensic Purpose' 'fishing Expedition' "confidentiality of Victims' Identities" 'alleged Sexual Assault by School Teacher']

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Procedural Posture

Review Decision of Registrar Access to Documents / Notice of Motion Filed 23 November 2004 Seeking Review of Assistant Deputy Registrar Howe's Decision of 26 October 2004 Concerning Access to Subpoenaed Documents

Legal Issues

  1. 1 ['Whether the decision of Assistant Deputy Registrar Howe made on 26 October 2004 should be discharged or set aside.' 'Whether unedited documents previously produced in edited or obliterated form should be made available to the plaintiff subject to confidentiality arrangements.' 'Whether the plaintiff should have access to additional documents located by the Police in early 2004, including 15 boxes said to answer the subpoena to the Commissioner of Police.' 'Whether the subpoenaed documents had apparent relevance or a legitimate forensic purpose, or whether the subpoenas amounted to a fishing expedition.' 'Whether confidentiality concerns about identifying victims justified refusing access.']

Ratio Decidendi

The plaintiff was entitled to unedited versions of documents already supplied and to documents within paragraph (1) of the subpoena to the Commissioner of Police because, particularly as to victims whose period at the school overlapped with or was close in time to the plaintiff's, it was on the cards that the documents would materially assist in establishing what the Department of Education or school authorities knew at the relevant time. The documents sought in paragraphs (2) and (3) of the subpoena lacked a legitimate forensic purpose because the plaintiff sought them only to see whether they might assist his case.

Court Disposition

The Registrar's decision was set aside in part and otherwise affirmed; costs were reserved.

Orders

  • ['The decision of Assistant Registrar Howe made on 26 October 2004 insofar as it relates to the supply of unedited documents already supplied to the plaintiff; and insofar as it relates to paragraph (1) of the subpoena addressed to the Commissioner of Police is set aside otherwise the orders of Assistant Deputy...