British American Tobacco Australia Services Ltd v John Fairfax Publications & anor [2006] NSWSC 1175

New South Wales Supreme Court

CITATION : British American Tobacco Australia Services Ltd v John Fairfax Publications & anor [2006] NSWSC 1175

HEARING DATE(S) : 7 November 2006 JURISDICTION : Equity Division Duty List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 11/07/2006

DECISION : Application to set aside Subpoena and Notice to Produce dismissed.

CATCHWORDS : EVIDENCE – Subpoenas and Notices to produce – setting aside – relevance – width – whether issued bona fide to obtain relevant evidence

British American Tobacco Australia Services Limited (plaintiff 5611/06) PARTIES : British American Tobacco Australia Limited (plaintiff 5612/06) John Fairfax Pubications (first defendant) The Age Company Limited (second defendant)

FILE NUMBER(S) : SC 5611/06; 5612/06

Mr M Wheelahan SC w Mr R Hollo (plaintiff 5611/06) COUNSEL : Mr M Jones (plaintiff 5612/06) Mr T Blackburn SC w Mr R Glasson (first defendant) Ms L McCallum SC w Mr A Dawson (second defendant)

Corrs Chambers Westgarth (plaintiff 5611/06) SOLICITORS : Baker & McKenzie (plaintiff 5612/06) Banki Haddock Fiora (first defendant) Minter Ellison (second defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

BRERETON J

Tuesday, 7 November 2006

5611/06 British American Tobacco Australia Services Limited v John Fairfax Publications Pty Limited

5612/06 British American Tobacco Australia Limited v John Fairfax Publications Pty Limited JUDGMENT (Ex tempore) 1 HIS HONOUR: By Notice of Motion filed in Court this morning, the defendant John Fairfax Publications Pty Ltd, and a journalist employed by Fairfax, Marcus Priest, move to set aside a Notice to Produce issued at the request of the plaintiff, British American Tobacco Australia Services Ltd, and served on Fairfax, and a Subpoena for Production issued at the request of BATAS to Mr Priest. The basis of the application is that the Subpoena and the Notice to Produce are said to constitute an abuse of process, having not been served for the purpose of obtaining relevant evidence and lacking a legitimate forensic purpose. 2 In these proceedings, BATAS seeks an order restraining Fairfax from publishing or disseminating certain documents in which BATAS claims confidentiality. The documents in question, in which confidentiality is claimed, are listed in paragraph 3 of the Summons. Paragraph 5 of the Summons claims an order for delivery up of those documents and any document that contains copies, extracts or excerpts of any part of them. At the interim hearing last week, I found that there was a sufficiently seriously arguable case of confidentiality as to justify, having regard to the balance of convenience, an interlocutory injunction restraining publication of the information contained in the documents until the hearing.