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

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…