Supreme Court New South Wales Medium Neutral Citation: McLachlan v Whelan Browne [2019] NSWSC 514 Hearing dates: 21 September 2018 Date of orders: 21 September 2018 Decision date: 07 May 2019 Jurisdiction: Common Law Before: Rothman J Decision: (1) Motions setting aside subpoenas dismissed. (2) In relation to all subpoenas except to Tracey Spicer (a) Subpoena paragraph 1 amended by deleting words "and/or evidencing"; (b) Subpoena paragraph 2 allowed; (c) Subpoena paragraph 3 amended by inserting "(i.e. metadata)" after "records"; (d) Subpoena paragraph 4 allowed, including in the subpoena to Tim Maddren; (e) Subpoena paragraph 5 allowed; (f) Subpoena paragraph 6 allowed. (3) In relation to the subpoena to Tracey Spicer, subpoena allowed subject to deleting "and/or evidencing". (4) The Applicants shall pay the Plaintiff's costs of and incidental to the motions. Catchwords: CIVIL PROCEDURE – subpoenas – objection to terms – motion to strike out in part – "fishing" – adjectivally relevant – use of the term "evidencing" – motion dismissed – some alterations effected Legislation Cited: Evidence Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Lindsay-Owen v HWL Ebsworth Lawyers [2017] NSWSC 1692 One.Tel Ltd (in liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 Portal Software v Bodsworth [2005] NSWSC 1115 Category: Procedural and other rulings Parties: Craig McLachlan (Plaintiff/Respondent) Christie Whelan Browne (First Defendant) Fairfax Media Publications Pty Limited (Second Defendant) Tim Maddren (First Applicant) Erika Heynatz (Second Applicant) Sophie Norfolk (Third Applicant) The person referred to in the headings above paragraphs 53 and 62 in the Confidential Annexure (Fourth Applicant) Angela Scundi (Fifth Applicant) Tracey Spicer (Sixth Applicant) Representation: Counsel: P Richardson (Plaintiff/Respondent) L Barnett (Defendants) M Cowden (Applicants) Solicitors: Mark O'Brien Legal (Plaintiff/Respondent) Banki Haddock Fiora (Defendants) Addisons Lawyers (Applicants) File Number(s): 2018/34244 Judgment 1. HIS HONOUR: The plaintiff sues for defamation, for the purpose of which he has served each of a number of persons with a subpoena to produce documents and/or records. The subpoena for production is, at least in part, sought to be set aside by the recipient of the subpoena and/or by the defendants in the proceedings. 2. At the time that the matter came before the Court, for determination of the Motions by the defendant and the recipients of subpoenas, the matter was listed urgently. At the time it had been set down for hearing commencing 4 February 2019 for a period of four weeks. In the meantime, because of the existence of other proceedings, the substantive proceedings have been stayed and the hearing which was to have commenced on 4 February 2019 has been vacated. 3. Nevertheless, at the time the Motions were listed before the Court, the matter was urgent and orders issued ex tempore on 21 September 2018. At the time, the Court indicated to the parties that it reserved reasons for judgment. The parties indicated that they did not require reasons, but the Court considers that it is under a duty to issue its reasons, not otherwise disclosed in the course of the discussions with counsel. As a consequence of the attitude of the parties (including any third-party applicant), these reasons are necessarily in short form. Background 1. First, it should be made clear that there are two sets of proceedings, one in which the plaintiff sues Ms Whelan Browne and Fairfax Media Publications Pty Ltd (hereinafter "Fairfax") and a second set of proceedings in which the plaintiff sues the Australian Broadcasting Corporation (hereinafter "ABC"). Relevantly, the Statement of Claim and Defences in each are either identical or not different in any way that is relevant to the current issues. 2. As a consequence, the subpoenas are dealt with only in relation to the Fairfax matter, but the orders in relation to the Fairfax subpoenas will be and were the same as those in the ABC matter. 3. Secondly, it is necessary to point out that the substantive proceedings are proceedings brought by the plaintiff for damages in defamation arising from a publication and/or broadcast in which imputations arise relating to allegations that the plaintiff is guilty of indecently assaulting and/or sexually harassing certain persons and of indecently exposing himself to and bullying certain female cast members in a production of the Rocky Horror Show. 4. The Defence raises the issue of justification and contextual truth. The particulars of the truth, being the direct justification of the imputations and the contextual imputations, run to approximately 124 paragraphs, but, relevantly, include allegations concerning five of the subpoenaed parties. The identity of the parties is, unless otherwise necessary, not a matter particularly relevant to these reasons for judgment. One of the parties to whom a subpoena has been directed is a person whose name and anything that might identify the person has been suppressed by order of the Court, issued in earlier proceedings. 5. As may be obvious from the identity of the defendants, the complaint is made in respect to a publication in the Sydney Morning Herald (and to the anterior interview that led to the article) and a broadcast on the ABC, being a report on the 7:30 Report. 6. Apart from the persons who are "complainants" as to the allegations of misconduct, subpoenas have been issued to the journalists, as part of the alleged investigation of the incidents and to the Media Entertainment and Arts Alliance, the union that includes Actors Equity and deals with the internal regulation of the journalism standards and ethical issues involving acting. 7. As earlier stated, the subpoena to each of the recipients is, at least in part, in or to the same effect. The objection taken to the subpoena is, with one exception, identical. 8. The first objection is that the subpoena, in part, is tantamount to discovery, because they call upon the recipient to make a judgement about what is caught by the subpoena. Further, objection is taken as to the period during which information is sought; and, lastly, the exception to which earlier reference has been made, objects to the subpoena on the basis of oppression. Principles 1. The principles are uncontroversial and there is no substantive disagreement between the parties as to the principles to be applied. Nevertheless, there is some disagreement as to the application of those principles. 2. In relation to objections such as those raised by the recipient and/or objecting parties, there is no distinction in the principles to be applied between defamation proceedings and any other civil proceeding. The Uniform Civil Procedure Rules 2005 (NSW) (hereinafter "UCPR") gives the Court power to set aside a subpoena on the application of a party or the recipient of the subpoena. 3. Essentially, a party seeking the production of documents must identify a legitimate forensic purpose for which the document is sought and establish that the documents that are sort will materially assist the case, or, more accurately, that, on their face, it is probable that the documents will materially assist the case. This latter aspect has been described in a number of ways. 4. The principles of "adjectival relevance" or whether the assistance that would be provided by any such document is "on the cards" was discussed by the Court, as presently constituted, in Lindsay-Owen v HWL Ebsworth Lawyers [2017] NSWSC 1692. I excerpt the relevant discussion, which is largely a reference to the judgment of Ward J (as her Honour then was) in the matter of One.Tel Ltd (in liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 and the judgment of Brereton J (as his Honour then was) in Portal Software v Bodsworth [2005] NSWSC 1115. I reiterate those comments at [24] – [26], which were in the following terms: "[24] Her Honour Justice Ward, as her Honour then was, referred to the tests associated with the issue of subpoenas, which tests are well known and have existed for some period of time. I refer in particular to the passages in her Honour's judgment in One.Tel Ltd (in Liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 at [22] – [29] in particular, which are to the following effect: '[22] In Portal Software, his Honour described (at [24]) the test as being whether the documents sought by the notice to produce have "a sufficient apparent connection to justify their production or inspection" (citing White v Tulloch (1995) 127 FLR 105) and said that the test of adjectival relevance (ie, as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for "could possibly throw light on the issues in the main case" (at [24]), citing Trade Practices Commissioner v Arnotts Ltd [1989] FCA 248; (1989) 21 FCR 306). [23] I note that in Cosco Holdings Pty Limited v Commissioner of Taxation [1997] FCA 1504; (1997) 37 ATR 432, Spender J had earlier considered the statement of Beaumont J in Trade Practices Commission v Arnotts as to the test of adjectival relevance and had noted that the word "possibly" was there not used in any speculative sense' and so a subpoena (as was there in issue) may be set aside if the issuing party cannot, on reasonable grounds, show that there is a reasonable possibility that the documents sought will assist in resolving a matter in dispute in the proceedings. [24] Nicholas J in ICAP Pty Limited v Moebes [2009] NSWSC 306 adopted an approach to Trade Practices Commission v Arnotts consistent with that of Spender J in Cosco. [25] In ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, the Court of Appeal held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose: [I]t must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will. [26] In Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100, Young JA, to similar effect as had Brereton J in Portal Software, held that for present purposes a notice to produce is the equivalent of a subpoena and that the ordinary rules as to oppressive subpoenas can be applied (at [33]). His Honour also said that, in modern litigation, a person is entitled to issue a subpoena and have it answered if there is a legitimate forensic purpose in issuing the subpoena, that is, that he or she has a reasonable cause to believe the documents subpoenaed have the capacity to throw some light on the issues in the proceedings, at [34]. [27] Although, as I noted in McLaughlin v Dungowan Manly (unreported, 14 July 2009, NSWSC), the authorities have largely dealt with relevance in the context of "fishing" objections (in which questions of relevance necessarily arise) and there is a significant overlap between considerations as to whether what is sought is relevant to an issue in the proceedings, whether it is oppressive and whether it constitutes impermissible 'fishing', the two grounds for objection do not completely overlap, so that a notice to produce may be set aside even if it seeks relevant documents. [28] The suggestion that mere relevance might be sufficient to establish a legitimate forensic purpose was rejected by Beazley JA in Attorney-General (NSW) v Chidgey [2008] NSWCCA 65, (there in the context of criminal proceedings). In Chidgey, her Honour did not accept that it was a legitimate forensic purpose to engage in a "fishing expedition" to discover whether there was a case at all, referring to The Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564, at 573–4; [1938] NSWStRp 29; 55 WN (NSW) 215, at 575 where Jordan CJ had stated that a party was not entitled to use a subpoena for that purpose. [29] Insofar as the Optus Group also referred to the test noted by Brereton J, in Portal Software, that a notice to produce will have a legitimate forensic purpose if it appears to be "on the cards" that the documents sought will materially assist, that formulation of the test appears more generally to be used in the context of criminal (not civil) proceedings. (His Honour had there referred to what was said in Alister v R (1984) 154 CLR 404, at 414 by Gibbs CJ and in R v Saleam (1989) 16 NSWLR 14, at 18. In Chidgey Beazley JA saw no reason to depart from the test and the language used in Alister and Saleam.)' [25] The Court of Appeal as her Honour recites in the judgment to which I have just referred, said in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, that for a notice to produce, or a subpoena, to have a legitimate forensic purpose, it must be shown that 'it is likely the documentation will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documentation will.' [26] The use of the term 'likely', in the principles, does not mean more probable than not. Nor does it mean some attempt by the Court to determine the use that might be made of documents that exist or that might exist. It must have, as has been often described, an adjectival relevance, that is, it must show somehow a direct relevance to a line of enquiry or, a manner in which, the documents would seem to be relevant to the issues between the parties. As Brereton J said in Portal Software v Bodsworth [2005] NSWSC 1115 at [19] – [24]: '[19] The power of the Court to set aside a subpoena or notice to produce (in whole or in part) is but an instance of its power to regulate its processes and in particular to intervene in the case of an abuse of its process: see Botany Bay Instrumentation and Control Limited v Stewart [1984] 3 NSWLR 98, 100 (Powell J). In the categories of cases described by Powell J, no reference is made to mere irrelevance as a ground for setting aside a subpoena or notice. The closest that the various categories listed by his Honour approaches relevance in his Honour's third category, namely, where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence. [20] However, relevance - or more accurately, lack thereof - is now a sufficient ground for setting aside a subpoena. In Trade Practices Commissioner v Arnotts Ltd [1989] FCA 248; (1989) 21 FCR 306; 88 ALR 90, Beaumont J approached the setting aside of subpoenas as oppressive on a basis which reveals that absence of apparent relevance is one of two separate bases for doing so: his Honour identified that on an application to set aside a subpoena as oppressive, two questions arose: first, whether the material sought had an apparent relevance to the issues in the principal proceedings - which his Honour called "adjectival" as distinct from "substantive" relevance - and thus the subpoena had a legitimate forensic purpose to that extent; and secondly, whether the subpoena was seriously and unfairly burdensome or prejudicial. Failure to satisfy either requirement resulted in the subpoena being set aside. [21] In Hatton v Attorney-General of the Commonwealth of Australia & Ors [2000] FamCA 892; (2000) 158 FLR 31; (2000) 26 Fam LR 520; (2000) FLC 93-038, Finn, Kay and Dessau JJ, after an extensive review of the authorities, including Arnotts, said:- As to the proposition that lack of relevance cannot of itself be a ground for setting aside a subpoena but rather must constitute oppression or abuse of process, we would consider that whatever may have been the position at the time that Waind and Hill was decided, the present state of authorities is such that lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena. [22] I proceed on the basis, therefore, that absence of apparent relevance is a sufficient ground to set aside a subpoena or a part of a subpoena. [23] It is necessary, then, to appreciate what is the test of "relevance" in the context of a subpoena. In many of the cases, it had been described as "apparent relevance", in the sense that the documents, production of which is sought, must bear some apparent relevance to an issue in the proceedings. In Waind and Hill, Moffitt P described the concept in these terms: Production of a document on subpoena by a stranger is only required if the document is sufficiently relevant to the action in the sense that it is likely to add in the end, in some way or other, to the relevant evidence in the case. [24] In White v Tulloch (1995) 127 FLR 105, (1995) 19 Fam LR 696, (1995) FLC 92-640, the Full Court of the Family Court referred to the test in terms of documents having "a sufficient apparent connection to justify their production or inspection". But perhaps the most instructive description is that of Beaumont J in Arnotts, in which his Honour said that the test of adjectival relevance was satisfied if the material had apparent relevance and was established if the documentation called for "could possibly throw light on the issues in the main case". In a slightly different but related context, the test has been put in terms that a subpoena has a legitimate forensic purpose if it appears to be "on the cards" that the documents sought will materially assist the defence in a criminal proceeding [Alister v The Queen (1984) 154 CLR 404, 414 (Gibbs CJ), R v Saleam (1989) 16 NSWLR 14, 18].'" 1. The objections to the subpoenas point to the use of the term "evidencing" and the submission is that the term involves the application of a judgement as to what may or may not evidence particular conduct. Further, the objections refer to the use of the term "assaulted" or "sexually harassed" as also requiring an assessment or conclusion as to that which amounts to assault or sexual harassment. 2. Otherwise, the objection refers to a lack of clarity in that which has been asked or disputes its adjectival relevance. Consideration 1. The term "evidence" or "evidencing", when used as a verb or participle may have two distinct meanings. The first of them is that which is codified in the Evidence Act 1995 (NSW) and refers to any document, or the content thereof, that renders a fact, directly or indirectly, more probable than it would otherwise be. 2. The second use, which is the less technical meaning of the term, is to "attest to something" or to "be evidence of something", in and of itself. The second meaning, to which reference has just been made, is a narrower term than "referring to". 3. The terms of the subpoena to which objection is taken use the composite term "referring to and/or evidencing". To the extent that the technical meaning of the term "evidencing" is being used, in my view it calls for a value judgement and possibly knowledge of other factors of which the recipient of the subpoena would be unaware. Nevertheless, the second meaning of the word evidencing is perfectly proper and is not "fishing". 4. However, since the second meaning of the term is a narrower description than the term "referring to", it is sufficient to delete the words "and/or evidencing" and allow the subpoena to go forward seeking documents "referring to any allegation". 5. As for the terms "assaulted" and "sexually harassed", the defendants submit that these have a legal meaning. It is true that each term may have a legal meaning, but the terms of the subpoena are to be taken in terms of their ordinary English usage. Each of the term "assaulted" and "sexually harassed" has an ordinary English meaning, which is, and can be, properly the matter of a description of a document by reference. 6. If, ultimately, the plaintiff, who has issued the subpoena, takes a broader view of the terms, it is not a matter upon which the recipient of the subpoena can be criticised, as long as the recipient of the subpoena takes a reasonable and ordinary view of the terms used. 7. As to the objection on the basis of oppression, I do not accept that any of the subpoenas are, on their face, oppressive. Notwithstanding that view, it seems to me that some of the dates that define the periods for which documents are to be produced, define a period that is not, at its extreme, adjectivally relevant. Conclusion 1. As a consequence of the two foregoing conclusions, I deleted the words "and or evidencing" from paragraph 1 of the subpoena and confine paragraph 3 to telephone records, being metadata, between 1 October 2017 and 1 February 2018 and not records to date. 2. In the course of the discussion as to the meaning of the term "telephone records", the plaintiff clarified that he was seeking what has been commonly called metadata, namely, records of the date, duration and time of any such telephone communication, as well as the number from which and to which the communication was made. The reference to "communication" includes data transmission or text message. 3. For reasons adumbrated during the discussion with the parties, I otherwise allowed the subpoenas. In case there are differences in the precise paragraph numbering of the subpoenas, the reference to the paragraph numbers in the foregoing reasons is a reference to the subpoena at Tab 1 of Exhibit MO-3. 4. The foregoing are the reasons, shortly stated, that the Court made the orders, ex tempore, on 21 September 2018. ********** 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: 22 September 2020