Police Commissioner Andrew Coster wanted the subpoena set aside, with concerns over privacy and the appropriateness of the procedure.
Police Commissioner Andrew Coster wanted the subpoena set aside, with concerns over privacy and the appropriateness of the procedure.
A couple battling their insurance company over a house fire one of them is accused of setting have now been caught in a legal spat with Police Commissioner Andrew Coster after roping him into their case.
Peter and Robyn Work were trying to get hold of an investigating detective’s workbook notes as evidence in their high court case and chose the “thermonuclear option” of trying to subpoena the Commissioner to appear in court and produce the notes himself, Justice Andru Isac said in a recent court decision.
The Works went through a four-week hearing in the Wellington High Court this year, seeking to enforce their home insurance contract with IAG for a house that was destroyed by fire in 2013.
IAG alleges Peter Work was responsible for the fire and that he knowingly misled the company’s investigation.
Part of the evidence in the hearing included redacted entries from the notebook of a detective investigating on the night of the fire. The notes included a record of a conversation the officer had with a person living nearby.
“During examination-in-chief, the notebook entry was put to a witness called by Mr and Mrs Work. The implication of the line of questioning was that the witness had deliberately started the fire. I raised a question with counsel about the address, which had been redacted along with the name of the person spoken to, and its potential relevance to an issue in the trial,” Justice Isac said.
The Works emailed the Police Records Department requesting the pages of the officer’s notebook from November 22 and 23, 2013.
“We urgently require an unredacted copy by tomorrow if not today,” they wrote.
“Unsurprisingly, given the lack of context or explanation for the request, and the obvious concerns about the privacy interests of members of the public spoken to by police, the request was declined. Less than half an hour later, the plaintiffs’ issued a subpoena by email on the Commissioner,” Justice Isac said.
The subpoena required Coster’s attendance at the hearing so he could produce an unredacted copy of the detective’s notebook entries. Coster responded with an application to have the subpoena set aside.
The couple had a four-week hearing in the Wellington High Court this year. Photo / NZME
“The primary concern was the privacy interests of the individuals who were identified in the redacted entries, and the appropriateness of serving a subpoena on the Commissioner in the circumstances,” the judge said.
In the end, despite his opposition to the subpoena, Coster “helpfully” made the notebook entries available to the court for the judge’s assessment. Justice Isac then ordered the release of the unredacted document to the parties and their expert witnesses, and made confidentiality orders permanently suppressing their contents.
Coster then made an application to the court seeking costs of $8006.50 from the Works for their use of the subpoena procedure.
“The Commissioner submits the approach taken by the plaintiffs was an abuse of process and ignored appropriate mechanisms through which the document could legitimately have been sought.”
In response, the Works submitted their own application for costs of $956, for having to file a memorandum opposing Coster’s own opposition.
“The plaintiffs criticise the Commissioner’s ‘adversarial and technical’ stance, and his failure to adopt a pragmatic approach to resolving the matter. They say the Commissioner is not entitled to costs in circumstances where the application to set aside the subpoena was neither heard nor determined, and the notebook entries were eventually provided as sought.”
Justice Isac said the matter should have been capable of informal resolution.
“Serving a subpoena on the Commissioner to produce a notebook entry that he did not personally create or have custody of was, with respect, the thermonuclear option.”
Despite the “unnecessary burden” on Coster, Justice Isac said it was not appropriate to order costs, “albeit by a narrow margin”, as ultimately there was never a hearing to decide on the subpoena.
A police spokesperson said the Commissioner had no involvement or knowledge of the fire.
“The attempt to have the Commissioner drawn in as a witness was rejected by the judge.”
