Hibbert v Nationwide News Pty Ltd (No. 3) [2016] NSWDC 242

District Court New South Wales

Medium Neutral Citation: Hibbert v Nationwide News Pty Ltd (No. 3) [2016] NSWDC 242 Hearing dates: 10 October 2016 Date of orders: 13 October 2016 Decision date: 13 October 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) The producing party by its servants or agents is to take all steps and make all necessary inquiries in relation to documents sought in categories 2, 3, 5(k), 9, 11 and 12 from the following persons: (a) The relevant servants or agents of the producing party responsible for providing Chairman's Reports and other club information to the Manly-Warringah Rugby League Football Club Limited for the purpose of that organisation producing an "Annual Report", for the period of time for which the documents in paragraph 2 the defendants' subpoena are sought; (b) The relevant servants or agents of the producing party responsible for dealing with the ARLC and/or the NRL (including the NRL Integrity Unit) for the period of time for which the documents in the defendants' subpoena in paragraphs 3, 4, 5(k), 9 and 11 are sought; (c) As to paragraphs 11 and 12 of the subpoena, Board members who served for any part of the period of time for which the documents in paragraph 12 of the defendants' subpoena are sought; (d) In the event that these records (or any part thereof) are asserted to be missing), the producing party to file and serve in 28 days an affidavit from the chairman of the producing party, Mr Penn, setting out the circumstances in which the documents from which the material sought in paragraphs 11 and 12 of the subpoena were first discovered to be missing and the person(s) in whose custody those documents were last known to be held before they were discovered to be missing. (2) The producing party's solicitor, Mr Unsworth, to file and serve in 7 days an affidavit setting out the basis upon which the claim for legal professional privilege for his 2013 report to the Board is made. (3) Costs reserved. (4) Defendants' application for compliance with the subpoena stood over for further directions to 17 November 2016. Catchwords: SUBPOENA – subpoena for production issued by defendants to third party ("the producing party") – asserted failure by the producing party to comply over a period of six months – order made for an authorised officer of the producing party to attend court for the purpose of examination in relation to the producing party's asserted failure to comply with the defendants' subpoena – whether failure to comply with the subpoena established – order for compliance with the subpoena by further search and (in relation to documents asserted to be missing) by affidavit Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 and 68 Corporations Act 2001 (Cth) Crimes Act 1900 (NSW), s 175 Uniform Civil Procedure Rules 2005 (NSW), Part 33 Cases Cited: Barkley v Barkley-Brown [2010] NSWSC 746 El-Helou v Smith [2009] NSWSC 741 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 Hexiva Pty Ltd v Lederer [2006] NSWSC 561 Hibbert v Nationwide News Pty Ltd (No. 2) [2016] NSWDC 206 McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 Murphy v Nationwide News Pty Ltd (Supreme Court of New South Wales, Hunt J, 26 October 1984) Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd and Ors [2006] NSWSC 831 Quach v Vu [2009] NSWSC 131 Sciacca v Langshaw Valuations Pty Ltd [2012] NSWSC 1450 Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 Vucic v Cikes (Supreme Court of New South Wales, Levine J, 17 March 1995) Wray v Wray [2007] NSWSC 164 Texts Cited: H H Glass, Seminars on Evidence (1970) Category: Procedural and other rulings Parties: Plaintiff: Darren Hibbert First Defendant/First Applicant: Nationwide News Pty Ltd Second Defendant/Second Applicant: Josh Massoud Respondent: Manly-Warringah Sea Eagles Limited Representation: Counsel: Defendants/Applicants: Ms L E Barnett Respondent: Mr D A Robertson