Boland v Dillon; Cush v Dillon (No. 3)

[2007] NSWDC 78

CITATION:	Boland v Dillon; Cush v Dillon (No. 3) [2007] NSWDC 78
HEARING DATE(S):	13/04/07
EX TEMPORE JUDGMENT DATE:	13 April 2007
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Orders in accordance with paragraphs 1 and 2 of the Notice of Motion setting aside the Notice to Produce returnable 23 March 2007; (2) The plaintiff and defendant are, within 28 days, to give discovery of all documents relevant to disputed issues of fact in the section 7A jury trial (including but not limited to publication) from an inspection of such documents to take place 14 days thereafter; (3) Set the matter down for hearing as a 2 day section 7A jury trial for 5 November 2007.
CATCHWORDS:	Defamation – subpoena issued prior to section 7A jury trial – whether documents outside the scope of the section 7A trial sought – whether subpoena objectionable in form, oppressive, a fishing expedition or a substitute for discovery
LEGISLATION CITED:	Defamation Act 1974 (NSW) s. 7A
CASES CITED:	Bailey & Others v Beagle Management Pty Ltd (2001) 105 FCR 136 New South Wales Commissioner of Police v Tuxford (2002) NSWCA 139 Scott v Nationwide News Pty Ltd (2005) NSWSC 169
PARTIES:	Plaintiff: Leslie Boland Plaintiff: Amanda Cush Defendant: Meryl Lurline Dillon
FILE NUMBER(S):	4917/06; 4735/06
COUNSEL:	Plaintiffs: P Sibtain Defendant: M Lynch
SOLICITORS:	Plaintiffs: Etheringtons Solicitors Defendant: Banki Haddock Fiora Lawyers

1 HER HONOUR: The defendant by way of notice of motion filed on 21 March 2007 seeks the following orders:

1. The notice to produce issued at the request of the plaintiff dated 14 March 2007 be set aside on the grounds that:

(a) it is an abuse of process, and;

(b) it has not demonstrated legitimate forensic purpose.

The notice of motion also seeks further orders including costs.

2 The relevant notice to produce, which was issued on 14 March returnable for 23 March, seeks the following documents which include but are not limited to any documents stored in electronic form including SMS phone messages, deleted emails or documents contained in any computer:

1. All documents created for the purpose or as a result of the meetings of the Border Rivers - Gwydar Catchment Management Authority on:


(a) 21 January 2005

(b) 18 February 2005

(c) 8 April 2005

(d) 18 August 2005


2. All documents created up to 18 February 2006 referring to a relationship of any kind between Leslie Frances Boland and Amanda Cush, including but not limited to records of conversation with James Croft and Michelle Chittenden prior to that date.

3. All documents created referring to the revision of funds to Meryl Lurline Dillon on account of litigation between herself and Leslie Frances Boland or litigation between herself and Amanda Cush.

3 First I must note that these are proceedings for defamation and the issue before the court on which the notice to produce is asserted to have forensic purpose is a s 7A jury trial which is set down for hearing later this year. The circumstances in which a party may issue a notice to produce or a subpoena in relation to a s 7A jury trial received extensive consideration from Levine J in Scott v Nationwide News (2005) NSWSC 169. His Honour noted at [8]-[10] the very limited issues that are before a jury in s 7A jury trials, namely issues of identification, whether imputations have been conveyed of and concerning the plaintiff and if so whether they are defamatory, identification and other issues of a kind set out in s 7A. In other words, issues relating to liability or quantum or other related issues (including, for that matter, malice) are of no relevance and it was for this reason that Levine J set aside a subpoena issued by Nationwide News which went outside the parameters of the matters that would be before the jury in a s 7A jury trial.

4 The two publications that are before the court here are a publication which occurred after a meeting of the Catchment Management Authority in either January or February 2005, and subsequently in a motor vehicle, in the course of travelling in relation to a subsequent meeting of the Catchment Management Authority.

5 In relation to each of the matters complained of I should also note the following. The plaintiff in Matter Number 4917 and the defendant are members of the board and the plaintiff in Matter 4735 occupies an executive position in relation to that board. Consequently, the first thing I would note in relation to minutes and what occurred at meetings and in particular in relation to the conversations with Mr Croft and Ms Chittenden are not exactly matters which are going to be difficult for any of those parties to determine. That, however, is of peripheral relevance. The real issue before the court is the question of whether or not there is a legitimate forensic purpose.

6 The first thing I should note is the submission that a notice to produce is a process akin to discovery (which I note is an order which could have been sought by the plaintiffs in these proceedings, but the plaintiff elected not to do). However, for the reasons explained by the Full Court of the Federal Court in Bailey and Others v Beagle Management Pty Limited (2001) 105 FCR 136 a notice to produce is in fact a procedure which is more akin to the issuing of a subpoena. As the Court of Appeal noted in New South Wales Commissioner of Police v Tuxford (2002) NSWCA 139 at para 19, “It is plain beyond argument that a subpoena cannot be used as a substitute for discovery” and it is my view that a notice to produce especially in proceedings such as defamation where discovery is very readily available that is also the case.

7 The procedure in which the documents have not been produced but the objection has been taken on the basis of lack of legitimate forensic purpose has been taken in accordance with the principles enunciated by the Court of Appeal in Tuxford at [20]-[22]. The real question is whether or not each of the categories sought relates to some document which will be relevant to the issues before the jury for determination and in particular the issue of whether or not the defendant published the matter complained of on each of the occasions.

8 There is no suggestion that the plaintiff said or did anything in the course of those meetings for which all documents are sought. An objection is taken both in relation to form and forensic purpose in relation to the documents in all three categories. I will deal with each of them separately.

9 First, in relation to the documents sought in para 2 of the notice to produce which is the first category of documents this seeks ‘all documents created without any reference to by whom or when’ and then seeks that these documents be further refined by the recipient of the notice to produce identifying whether those documents were created ‘for the purpose or as a result of one or more of each of the four meetings which is listed below’.

10 Mr Lynch says from the bar table - and I therefore accept - that this could be a mass of documents and what is of concern to me is that it would require not simply the production of a mass of documents (because it may well be that the documents in question turn out to be relatively few in number) but it would require the defendant to sit down and analyse all of the documents produced probably to the Border Rivers - Gwydar Catchment Management Authority over a year long period to determine if those documents were created by not only herself but some other person for the purpose of or as a result of those meetings as opposed to other meetings. What is she supposed to do if they are created from more than one meeting? If she is not sure, is she supposed to ring up each of the persons who created those documents? It clearly is not only a fishing expedition but also it creates a fairly onerous obligation on her.

11 The reason it was put forward was to jog the memory of the witness to whom things were said after the January or February meeting but that is, in my view, not a legitimate forensic purpose for a subpoena that is issued in relation to whether or not there was publication. Helping a witness remember when a statement is alleged to have been made is not something for which the plaintiff can cast the burden onto the defendant. The purpose of the issuing of a notice to produce is to obtain documents with a legitimate forensic purpose to the issues in dispute, not to help a witness remember when something may or may not have happened. As the Court of Appeal noted in Tuxford at para [27]-[28]: “The plaintiffs are not entitled to procure the issuing of a notice to produce for the purpose of endeavouring not to obtain evidence to support their case but to discover whether they have a case or to discover the nature of the case of the defendant. There has to be something beyond speculation, some common ground for belief that takes the case beyond a mere fishing expedition. The fact that somebody believes, or suspect, that a mass of documents would show that there would be something that would help the plaintiff’s case is really not sufficient.” A similar point was made by the Full Court of the Federal Court in Bailey at p 140.

12 It seems what the plaintiffs are seeking to discover is whether the defendant has a case at all, as opposed to seeking documents that would prove publication or record, for example something to do with the conversation that Mr Croft says that he had with the defendant in either January or February 2005.

13 Having taken into account the factual matrix about each of these publications, the oppressive nature of what is involved and the lack of forensic connection with the issues in this litigation, I am of the view that the request for documents in paragraph 2 not only seeks documents of such a large number as to be oppressive but that they relate to documents which have no forensic purpose to the section 7A jury trial.

14 In relation to the documents sought in paragraph 3 of the notice of motion, which is the second group of documents sought in this litigation, these documents come a little closer to the mark but once again the drafter of the notice to produce has asked for “all documents created up to 18 February 2006” without specifying by whom and has asked for them as referring to “a relationship of any kind between Leslie Francis Boland and Amanda Cush” which again requires the reading of an awful lot of documents because a relationship of any kind could for example have to do with the fact that Mr Boland is a board member and Ms Cush holds some form of executive capacity, so that could conceivably catch any one of a number of documents. I note this is said to be “including but not limited to records of conversation with James Cross and Michelle Chittenden prior to that date” and it does seem at least we are getting to some documents that might conceivably have some relevance. However a similar situation occurred in Tuxford and the Court of Appeal noted at paragraph 26 that one can readily visualise that some documents might well throw some light on the issues but all that an opponent to the production of documents should show is the lack of forensic purpose and the oppressive nature of what is sought and it is not then up to the court to put a blue pencil line through parts of a subpoena or to endeavour to work out what is really required.

15 Accordingly, I am of the view that there is a lack of forensic purpose in relation to the documents sought in paragraph 3 of the notice to produce.

16 Finally, in relation to the third category of documents sought, this is apparently directed to some form of letter that was sent by the defendant seeking funding in relation to this litigation. Again there is a request for “all documents created referring to the provision of funds” by any person and it is sought over some unspecified period of time, but again, it is my view that there is a lack of legitimate forensic purpose in that what this is seeking is this is fishing for some form of documentation where hopefully there is some form of inconsistency between what is said in this letter and the defendant’s denial of what she has said. This is a classic case of a fishing expedition which does not seek to obtain evidence to support its party’s case but to find out if there is a document which may contain, not an admission of publication since it is highly unlikely this document would contain such an admission but some inconsistency that might be useful in cross-examination in circumstances where it really is an example of fishing for material in the hope that something might come up, as opposed to it being on the cards that Ms Dillon would have had to have admitted to the publication for the purpose of obtaining funding or something similar.

17 Accordingly it is my view that the documents sought in category 4 should not be produced. However, having said that, noting that there may well be some documents not only in the position of the defendant but of the plaintiff that casts some light on the issue of publication. It seems to me that it is appropriate that I should, the parties having consented to an order for discovery, direct that both of the parties should provide discovery in relation to the issue of publication. It is appropriate that both parties should provide discovery because it may well be having regard to some of the evidence I heard in earlier applications that, for example, there was statements made at subsequent board meetings. I rather had the impression from some evidence of Mr Butler that there was apparently some consideration of an attempt being made at subsequent board meetings to obtain an apology from the defendant and it may well be that there are documents in existence. It may well be that there are notes made by the plaintiff or defendant or both of them in relation to either of these purported conversations, or for that matter with the conversation with Mr Badenoch, whose name I seem to recall coming up in other proceedings. If so, it is appropriate that there should be discovery now rather than that people should claim at the trial that they are taken by surprise by production of some document. Discovery is not an uncommon order where there are disputed issues as to publication. Accordingly it seems to me that if the parties were to provide lists of documents in twenty-eight days and inspection were to be permitted fourteen days thereafter that many of these issues would then go away, bearing in mind that both parties have already informed me that they intend to interrogate.

18 Accordingly, the orders I make are as follows:

(1) Orders in accordance with paragraphs 1 and 2 of the Notice of Motion setting aside the Notice to Produce returnable 23 March 2007.

(2) The plaintiff and defendant are, within 28 days, to give discovery of all documents relevant to disputed issues of fact in the section 7A jury trial (including but not limited to publication) from an inspection of such documents to take place 14 days thereafter.

(3) Set the matter down for hearing as a 2 day section 7A jury trial for 5 November 2007.