ATTORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2UE SYDNEY PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE and HANDLEY JJA 14 October 1996 [1996] NSWCA 27 EVIDENCE — subpoena seeking production of commercial documents — appeal court to decide only if material sought relates to matters capable of being relevant — ultimate decision on relevance for trial court Clarke JA In the matter of the Attorney General of the State of New South Wales against Radio 2UE Sydney Pty Ltd and John Laws there are before the Court two notices of motion. One filed on behalf of Radio 2UE Sydney Pty Ltd and the other by Fordham Communications Pty Ltd seeking to have this Court review the decision of Registrar Jupp, made on 19 August 1996, dismissing the motions of the respective claimants in which each of the claimants sought an order that either part or the whole of a subpoena be set aside. The principal proceedings are proceedings in contempt brought by the Attorney General against the two parties I mentioned, that is Radio 2UE Sydney Pty Ltd and John Laws, in respect of a segment of the John Law's radio programme which was broadcast at about 11.00am on 22 February 1996 concerning a person who need not be named. At the time the segment was broadcast that person was on trial for murder. The trial shortly afterwards and, as I understand it, by reason of the segment, miscarried and the retrial is set down for April next year. During preparation for the hearing the Attorney General issued subpoenas seeking production of a number of commercial documents relating to the John Law's radio programmes designed to establish, amongst other things, the extent of the reach of that programme and the influential nature of Mr Laws himself. The subpoenas were issued, according to counsel, to assist the claimant to establish the allegation contained in paral1A of the amended summons in which it was said that Mr Laws was an influential commentator on public affairs and community attitudes and was widely sought after for promoting products and services. The bases upon which it was said that the Registrar was wrong in declining to strike out any parts of the subpoenas was that they were each seeking documents which were irrelevant to the proceedings. The thrust of that claim was that the facts referred to in the sentence in paral1A which I have cited were, themselves, irrelevant. Accordingly, there were in essence two limbs to the attack. The first complaint that the facts referred to in the relevant sentence of parallA were irrelevant and therefore material sought to support them was also irrelevant. Secondly, in any event, while those facts might have been relevant, the material itself was not capable of proving their truth. As it seems to me it is not the task of this Court, in reviewing the Registrar's decision, to determine whether the relevant sentence in parallA asserts facts which are or are not relevant or whether the documents sought by the subpoenas are or are not relevant. 2 UNREPORTED JUDGMENTS The question more accurately stated is whether the matter that the Attorney General seeks to prove is capable of being regarded as relevant and, if so, whether the material sought in relation to that allegation is properly the subject of a subpoena. I phrase the matter in that way because it is not strictly accurate to talk of the relevance of material sought in a subpoena. It is open in some circumstances for a party to go wider and seek to obtain material which may be relevant in the broad sense of being helpful or useful in the presentation, or preparation, of the litigation but which may not eventually pass the evidentiary test of relevance and be admitted into evidence. Looking at the motions in that way, it seems to me that the primary challenges which are made to the subpoena must fail. I am clear in my view that the facts set out in the relevant sentence in paral1A must be regarded as capable of being considered relevant and that the decision whether or not ultimately they are relevant could only be reached by the trial court in the consideration of the case as a whole. I am also of an opinion that the material in the subpoenas should be regarded as properly sought for a genuine purpose in the litigation and that it cannot be said that is it is not capable of being regarded as either relevant or as useful for a genuine forensic purpose. As it seems to me there is no basis upon which the whole of the subpoena or the substantial part of a subpoena could be struck out and I would decline to interfere with the Registrar's decision. There has, however, also been a challenge based on the width of the subpoena insofar as it has sought material that extends beyond 22 February 1996. I was initially of the view that documents relating to the period after April 1996, perhaps, bore too small a relationship with the litigation to require that the claimants produce them in answer to subpoenas. But having regard to the possibility that the material might contain admissions, and the possibility of retrospective presumptions, I do not think that the Court should make an order striking out portions of the subpoenas or in any way limiting the period covered by, for instance, para6 and para7 in the subpoena directed to Radio 2UE Sydney Pty Ltd. I would however have it noted that the Solicitor General has indicated that no document is sought which came into existence after the date of the issue of the subpoena. ORDER In these circumstances I am disposed to the view that the application for review should be dismissed with costs. The matter should be referred back to the Registrar on a date to be fixed by him by arrangement with the parties in order that the further steps necessary to be taken in respect to the subpoenas can be made the subject of appropriate directions. Handley JA I agree. Application for review dismissed with costs. The matter referred back to the Registrar on a date to be fixed by him by arrangement with the parties in order that the further steps necessary to be taken in respect to the subpoenas can be made the subject of appropriate directions. Counsel for the claimant: H Nicholas QC and J Gleeson Solicitors for the claimant: Bush Burke and Co Counsel for the opponent: K Mason QC (Solicitor General) and P Lakatos UWAJORNEY GENERAL FOR THE STATE OF NEW SOUTH WALES v RADIO 2U8 SYDNEY PTY LTD (Handley JA) Solicitors for the opponent: IV Knight (State Crown Solicitor)