Kable v State of NSW & Anor [2000] NSWSC 1173

Kable v State of NSW & Anor [2000] NSWSC 1173

The Hansard extracts were refused because no explanation was given for not putting them before the Registrar, they were not being used to assist statutory interpretation, and they were sought for the impermissible purpose of examining parliamentary motives. However, Registrar Irwin's decision to set aside paragraph 10 of the notice to produce was incorrect: the Task Force Harm documents could be expected to contain advice and instructions relevant to whether the intentional elements of abuse of process and malicious prosecution were present, so the plaintiff was seeking documents that may support his pleaded case rather than merely fishing to see whether he had a case.

Jurisdiction
Australia
Judgment Date
15 December 2000
Procedural Posture
Common Law Proceedings; Review of Registrar's Decision Concerning Subpoena/notice to Produce / Notice of Motion Filed 21 March 2000 Seeking Review of Registrar Irwin's Decision Dated 16 March 2000
Outcome
Review upheld; Registrar Irwin's decision set aside; first defendant ordered to produce documents and pay the plaintiff's costs.
Legal Topics
["review of Registrar's Decision" 'subpoena and Notice to Produce' 'fishing Expedition' 'production of Task Force Harm Documents' 'hansard Evidence' 'bill of Rights Article 9' 'malicious Prosecution' 'abuse of Process' 'false Imprisonment' 'community Protection Act 1994 (nsw)']
['civil Procedure' 'torts' 'constitutional Law' 'parliamentary Privilege'] ["review of Registrar's Decision" 'subpoena and Notice to Produce' 'fishing Expedition' 'production of Task Force Harm Documents' 'hansard Evidence' 'bill of Rights Article 9' 'malicious Prosecution' 'abuse of Process' 'false Imprisonment' 'community Protection Act 1994 (nsw)']

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Procedural Posture

Common Law Proceedings; Review of Registrar's Decision Concerning Subpoena/notice to Produce / Notice of Motion Filed 21 March 2000 Seeking Review of Registrar Irwin's Decision Dated 16 March 2000

Legal Issues

  1. 1 ['Whether extracts from Hansard should be admitted or used to show improper purpose or the collective state of mind of Parliament.' "Whether paragraph 10 of the plaintiff's notice to produce seeking documents concerning Task Force Harm should be set aside as fishing." "Whether Registrar Irwin's decision setting aside paragraph 10 of the notice to produce should be reviewed and set aside."]

Ratio Decidendi

The Hansard extracts were refused because no explanation was given for not putting them before the Registrar, they were not being used to assist statutory interpretation, and they were sought for the impermissible purpose of examining parliamentary motives. However, Registrar Irwin's decision to set aside paragraph 10 of the notice to produce was incorrect: the Task Force Harm documents could be expected to contain advice and instructions relevant to whether the intentional elements of abuse of process and malicious prosecution were present, so the plaintiff was seeking documents that may support his pleaded case rather than merely fishing to see whether he had a case.

Court Disposition

Review upheld; Registrar Irwin's decision set aside; first defendant ordered to produce documents and pay the plaintiff's costs.

Orders

  • ['The decision of Registrar Irwin dated 16 March 2000 is set aside.' 'The first defendant is to produce documents in accordance with paragraph 10 of the subpoena by 31 January 2001.' "The first defendant is to pay the plaintiff's costs."]