Larter v Hazzard [2021] NSWSC 1411

Larter v Hazzard [2021] NSWSC 1411

The subpoena was set aside because, on the plaintiff's own formulation, the substantive challenge was confined to legal unreasonableness of the orders as outcomes and did not challenge the decision-making process. The Minister's reasons for making the orders therefore would not be substantially relevant: if the orders were legally unreasonable, reasons could not save them, and if they were not legally unreasonable, reasons could not impugn them on that basis. The plaintiff had not sought reasons under UCPR r 59.9, and examining the Minister would likely expand the case into process issues, risking adjournment and undermining the overriding purpose in s 56 of the Civil Procedure Act 2005...

Jurisdiction
Australia
Judgment Date
01 November 2021
Procedural Posture
Civil Procedure Application in Judicial Review Proceedings Concerning Public Health Orders / Defendants' Notices of Motion to Set Aside a Subpoena to Give Evidence and a Notice to Produce
Outcome
Subpoena to give evidence issued to the first defendant set aside; paragraph 11 of the notice to produce set aside; costs of the subpoena motion reserved; no order as to costs of the notice to produce motion; directions made for service of proposed further amended summons.
Legal Topics
['subpoena to Give Evidence' 'notice to Produce' 'legal Unreasonableness' 'judicial Review' 'covid 19 Vaccination Public Health Orders' 'statement of Reasons' 'relevance' 'oppression and Competing Parliamentary Obligations']
['civil Procedure' 'administrative Law' 'public Health'] ['subpoena to Give Evidence' 'notice to Produce' 'legal Unreasonableness' 'judicial Review' 'covid 19 Vaccination Public Health Orders' 'statement of Reasons' 'relevance' 'oppression and Competing Parliamentary Obligations']

Case Brief

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Procedural Posture

Civil Procedure Application in Judicial Review Proceedings Concerning Public Health Orders / Defendants' Notices of Motion to Set Aside a Subpoena to Give Evidence and a Notice to Produce

Legal Issues

  1. 1 ['Whether the subpoena requiring the Minister to attend and give evidence should be set aside under Uniform Civil Procedure Rules 2005 (NSW), r 33.4.' "Whether evidence from the Minister about his reasons for making the Order, the Amended Order and the Second Order would be relevant to the plaintiff's challenge confined to legal unreasonableness, including lack of proportionality." 'Whether the subpoena was an abuse of process or oppressive where the plaintiff had not sought reasons under Uniform Civil Procedure Rules 2005 (NSW), r 59.9 and the Minister had competing parliamentary commitments.' 'Whether paragraph 11 of the notice to produce, seeking documents about consideration of leave for the plaintiff, should be set aside for lack of relevance.']

Ratio Decidendi

The subpoena was set aside because, on the plaintiff's own formulation, the substantive challenge was confined to legal unreasonableness of the orders as outcomes and did not challenge the decision-making process. The Minister's reasons for making the orders therefore would not be substantially relevant: if the orders were legally unreasonable, reasons could not save them, and if they were not legally unreasonable, reasons could not impugn them on that basis. The plaintiff had not sought reasons under UCPR r 59.9, and examining the Minister would likely expand the case into process issues, risking adjournment and undermining the overriding purpose in s 56 of the Civil Procedure Act 2005...

Court Disposition

Subpoena to give evidence issued to the first defendant set aside; paragraph 11 of the notice to produce set aside; costs of the subpoena motion reserved; no order as to costs of the notice to produce motion; directions made for service of proposed further amended summons.

Orders

  • ['Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 33.4, set aside the subpoena to give evidence issued to the first defendant.' 'Reserve the costs of the notice of motion to set aside the subpoena.' 'Set aside paragraph 11 of the notice to produce served by the plaintiff on the defendants.' 'Make no order as...