Cromwells Auctions and Appraisers Pty Limited v John Fairfax Publications Pty Limited [2002] NSWSC 947

New South Wales Supreme Court

CITATION : Cromwells Auctions and Appraisers Pty Limited v John Fairfax Publications Pty Limited [2002] NSWSC 947 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20443/02 HEARING DATE(S) : 4 October 2002 JUDGMENT DATE : 4 October 2002

PARTIES : Cromwells Auctions and Appraisers Pty Limited (Plaintiff) John Fairfax Publications Pty Limited (Defendant) JUDGMENT OF : Dunford J

COUNSEL : C Evatt (Plaintiff) TD Blackburn (Defendant) SOLICITORS : Monte Gildea Lawyer (Plaintiff) Freehills Solicitors (Defendant) CATCHWORDS : DEFAMATION - Application for interlocutory injunction - Notice to produce draft of proposed publication. CASES CITED : Clarke v Queensland Newspapers Pty Limited [2000] 1 Qd R 233 DECISION : See para 3.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DUNFORD J

Friday, 4 OCTOBER 2002

M0001/02 Cromwell's Auctions and Appraisers Pty Limited v John Fairfax Publications Pty Limited

JUDGMENT – re notice to produce 1 HIS HONOUR: In relation to what has been described as the notice to produce, objection is taken to the production of the documents sought therein and the defendant's counsel relies on the Queensland decision of Clarke v Queensland Newspapers Pty Limited [2000] 1 Qd R 233 where the principle is laid down by reference to a number of other cases, including cases of high authority in New Zealand and Victoria, to the effect that generally production of proposed material for production will not be ordered. It seems to me each case depends on its own merit and reference was made in para 30 of that judgment to the fact in that case a general description and considerable particulars of the proposed article had been supplied and what were apparently the main allegations had been put to the plaintiffs and the replies were to appear in the article. In addition, the plaintiffs had had the opportunity to swear affidavit material in response to the affidavit material which was the source of the allegations to be published. 2 It is also my experience, limited though it is, that in applications to restrain the broadcasting of television programmes the tape that is proposed to be broadcast is often produced. I can see why as a general rule production should not be automatic, because in one sense it amounts to a form of pre-trial discovery and the situation could arise where a plaintiff has not known what was going to be published or whether he, she or it had a case, and has sought production in order to determine whether she, he or it might have such a case. However, in this case only the most general nature of the proposed item to be published has been disclosed and there certainly is evidence that it is intended that an article will be published. 3 It seems to me that in the circumstances of this case, unless the substance of what is at this stage proposed to be published is before the Court, we will spend a day "tilting at windmills" without any firm idea as to what we are all talking about. I therefore order production of the latest draft of the proposed article. I appreciate that this has not been "legalled", but consider that for the efficient dispatch of this application the latest draft of the proposed article should be produced. On the other hand, I consider the other material sought (such as copies and notes) is too wide and need not be produced at this stage. **********