Supreme Court New South Wales Medium Neutral Citation: SL v Catholic Diocese of Lismore [2020] NSWSC 1203 Hearing dates: 28 August 2020 Date of orders: 28 August 2020 Decision date: 28 August 2020 Jurisdiction: Common Law Before: Garling J Decision: (1) Dismiss the Notice of Motion filed 21 July 2020; (2) Fix the subpoenas for return before the Registrar at 9am on 3 September 2020. (3) Order each party to pay their own costs of the Notice of Motion filed 21 July 2020. Catchwords: CIVIL PROCEDURE — Subpoenas — Application to set aside – application to set aside subpoena issued to the previous lawyers for the plaintiff concerning disclosure of documents to the media – whether the subpoena had a legitimate forensic purpose – subpoena found to go to the credit and credibility of the plaintiff – motion to set aside dismissed Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Alister v the Queen [1984] HCA 45; (1984) 154 CLR 404 Commissioner for Railways v Small (1938) SR 564 R v Saleam [1999] NSWCCA 86 R v Saleam (1989) 16 NSWLR 14 Texts Cited: Not Applicable Category: Procedural and other rulings Parties: SL (P) Catholic Diocese of Lismore (Respondent) Mark Barrow, Ken Cush & Associates Pty Ltd (Applicant) Representation: Counsel: E Anderson (Applicants) W Reynolds (Respondent/Defendant) Solicitors: Somerville Laundry Lomax (Applicant) Hannigans Lawyers (Respondent/Defendant) File Number(s): 2019/169122 Publication restriction: Not applicable EX TEMPORE Judgment 1. This is an application, made by Notice of Motion filed on 21 July 2020, by Mark Geoffrey Barrow, Nicholas William Kitchen and Ken Cush & Associates Pty Limited, to whom I will refer to as the applicants. The applicants seek an order that subpoenas issued to Mr Barrow and Mr Kitchen to attend to give evidence and to produce documents, and a subpoena to produce issued to Ken Cush and Associates Pty Limited, be set aside pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005. 2. The subpoenas which are sought to be set aside were each filed on 25 June 2020. Insofar as they require documents, the subpoenas each seek the production of documents described in various ways, including notes, letters and memoranda and email communications, between the recipients of the subpoenas and any journalist working with the Newcastle Herald newspaper, including Ms Joanne McCarthy. The subject matter of those documents is either "Father Clarence Anderson or Bishop Farrelly". 3. The content of that material is said to relate to the substance of an article published by the Newcastle Herald under the name of Ms McCarthy. This article included references to and republications of documents which came from the files of the respondent to this Motion, the Diocese of Lismore, relating to Father Anderson, who is the person alleged by the plaintiff in these proceedings to have perpetrated sexual abuse upon him. Those documents were provided to the applicants by way of discovery at a time when the applicants were acting as the solicitors for the plaintiff. Notice of Motion 1. The Motion seeks to have the subpoenas set aside on the basis that no legitimate forensic purpose has been disclosed on the face of the documents. The respondents to the Motion submit that the documents are relevant to the credit and credibility of the plaintiff in a case where, on the evidence they have provided, there is a proper basis for challenging the credit and credibility of the plaintiff. 2. The applicants submit that a mere statement of general proposition that the credit or credibility of a party such as the plaintiff is in issue does not adequately state a legitimate forensic purpose for the documents sought under these subpoenas. 3. The applicants submit that what is clear on the entirety of the evidence available to the Court is that the plaintiff has himself denied providing the documents to the newspaper and journalists. These denials, it was submitted, occurred both in the instructions provided to the applicants when they were acting for him, and also in the course of a conversation between him and the solicitor for the Diocese of Lismore. 4. The applicants submit that there is an inference available that the documents were provided inadvertently to the newspaper or the journalist by an employee of the firm Ken Cush & Associates Pty Limited (though not by either the solicitor on the record, Mr Barrow, or the solicitor with the conduct of the matter, Mr Kitchen). In those circumstances the applicants submit that, whatever be the answer to these subpoenas, it could not be said to affect the credibility of the plaintiff. Relevant Legal Principles 1. It is beyond doubt that to use a subpoena to embark upon a fishing expedition, in the hope that something might possibly turn up that would be of utility in a trial, is a misuse of the process of issuing a subpoena. This is particularly so where a subpoena to produce documents is addressed to a stranger to the cause. 2. Further, it is important that the subpoena be expressed in a way which has adequate precision, as was said by the Chief Justice Sir Frederick Jordan in Commissioner for Railways v Small (1938) SR 564 at 573: "A subpoena [to produce documents] ought not be issued to [a stranger] requiring him to search for and produce all such documents as he may have in his possession and power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant." 1. It is also necessary, before production will be required or access permitted to documents, for the person who issues the subpoena to be able to identify "expressly and with precision" the legitimate forensic purpose for the documents: see R v Saleam (1989) 16 NSWLR 14 at 18C. 2. To establish a legitimate forensic purpose it must be shown not only that the documents are relevant, but that it is on the cards that the documents will materially assist the case of the material seeking them: see Alister v the Queen [1984] HCA 45; (1984) 154 CLR 404 at 414; see also R v Saleam [1999] NSWCCA 86 at [11]. Discernment 1. I am satisfied that the documents, which were the source of the article published in the Newcastle Herald written by Ms McCarthy, were documents belonging to the Diocese of Lismore that had been disclosed on discovery to the plaintiff SL and to his solicitors. 2. The question then is whether an answer to the subpoenas is likely to provide material which is relevant to an issue in the proceedings, namely the credit and credibility of the plaintiff, and therefore whether it is on the cards that the documents will materially assist the case for the Diocese of Lismore. 3. This is an early stage of dealing with the return of the subpoena, by which I mean the proceedings are at a stage prior to any documents being produced to the Court and the Court being asked to determine the legitimate forensic purpose of the documents by reference to the contents of any documents themselves. Consequently, a conclusion about relevance and legitimate forensic purpose is necessarily somewhat impressionistic rather than one anchored in the particular documents. 4. In considering that issue and evaluating the question of whether sufficient legitimate forensic purpose has been shown, it is necessary to have regard to the fact that, if there are any documents in answer to the subpoenas, they will have been generated during a time when the applicants were acting for the plaintiff. I am therefore not certain that it is fair to describe the applicants as being complete strangers to the litigation, as Sir Frederick Jordan was dealing with in the case of Small. The applicants were the solicitors for the plaintiff at the relevant times. 5. Secondly, it is important to keep in mind that the terms of the subpoenas, including the subpoenas to produce documents, do not require the recipient to go to any trouble or expense in "ransacking their records", to use the term in Sir Frederick Jordan's judgment. All they have to do is to identify, by searching the electronic records or paper files (or both) pertaining to this plaintiff's matter over a relatively short time period, whether there are any documents which answer the subpoena. I do not think that this is a matter where the Diocese of Lismore could be said, by the terms of the subpoenas, to be seeking discovery against a person who is a stranger. 6. The real issue seems to me to come down to whether any response to these subpoenas is likely to demonstrate anything of relevance to the plaintiff's credit. In my view it is likely that an answer to the subpoenas will contain material relevant to the plaintiff's credit. If documents are produced, then it will become apparent whether there was communication of a particular kind, to the journalists and/or to the Newcastle Herald, concerning these documents. If that is so, it will also be apparent as to whether the plaintiff has or has not authorised or instructed the solicitors to take such course or, alternatively, expressed a contrary view. 7. The other possibility is that no documents exist in the hands of the applicants and they produce nothing. In that circumstance that answer to the subpoena goes directly to the credibility of the plaintiff who has asserted in various ways that he was not responsible for the transmission of the documents. 8. For all of these reasons I am not persuaded by the applicants that there is no legitimate forensic purpose to be found in these subpoenas. I decline to set aside the subpoenas. Orders 1. I make the following orders: 1. Dismiss the Notice of Motion filed 21 July 2020; 2. Fix the subpoenas for return before the Registrar at 9am on 3 September 2020. 3. Order each party to pay their own costs of the Notice of Motion filed 21 July 2020. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 September 2020