British American Tobacco Australia Services Ltd v John Fairfax Publications & anor

[2006] NSWSC 1175

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
PARTIES:	British American Tobacco Australia Services Limited (plaintiff 5611/06) 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
COUNSEL:	Mr M Wheelahan SC w Mr R Hollo (plaintiff 5611/06) 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)
SOLICITORS:	Corrs Chambers Westgarth (plaintiff 5611/06) 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.

3 Paragraphs 1 and 2 of the Subpoena and the Notice to Produce seek production of a number of documents identified in an article published in The Sunday Age of 29 October 2006, together with a further document called Chronology of Events, at least one page of which is, the evidence shows, seriously arguably in the possession of Mr Priest.

4 The starting point for Mr Blackburn's submission that the Notice to Produce and the Subpoena constitute an abuse of process was the proposition that no relief was sought against the publisher of The Age. It is plain on the face of the affidavit of Paul Richard McCann, sworn 2 November 2006, on which BATAS relied on the application for an interim injunction, but which Fairfax tendered on the present application for the purpose of showing the nature of the case made by the plaintiffs, that rightly or wrongly – Fairfax asserts wrongly - BATAS believed that the defendant was the publisher of The Age and The Sunday Age. In those circumstances, the proposition the plaintiff was not genuinely interested in restraining further publication of the information by the paper which had already published it, and that these proceedings were therefore an abuse of process, strikes me as perilously close to absurd, and I reject it.

5 Ultimately, the submission made on behalf of Fairfax, that the Subpoena and Notice to Produce involved an abuse of process, depended on the proposition that the claim for relief in paragraphs 3 and 5 of the Summons, was not claimed bona fide. It is impossible on an application of this type finally to resolve whether there is any genuine claim for that relief, but nothing has been put before me from which I could infer that the plaintiffs have not brought these proceedings with the intent of prosecuting them for the relief set out in paragraphs 3 and 5 of the summons. The submission that the Subpoena and the Notice to produce involve an abuse of process is baseless.

6 While it is true that aspects of the evidence so far relied on by the plaintiffs focus not on the documents specified in paragraphs 3(a) to (c) of the Summons (to which paragraph 1 of the Subpoena and the Notice to Produce relate), but on the contents of the chronology document referred to in paragraph 3(d) of the Summons (to which paragraph 2 of the Subpoena and the Notice to Produce relate), the combination of Mr Priest’s apparent possession of at least a part of that chronology document, with the apparent possession by the publisher of The Age of the other documents, and the conclusion that I reached last week that it was seriously arguable that those documents had been received with notice that they were disclosed in breach of confidence, means that there is a sufficient basis for supposing – for the limited purpose of deciding whether the documents called for are apparently relevant in the adjectival sense, so as to justify the issue of a subpoena - that all of the documents referred to in paragraph 3 of the Summons might be in the possession of the defendant and/or Mr Priest; it is “on the cards” that he and Fairfax have such documents.

7 The subpoena to Mr Priest also claims production of "any documents recording communications between you and any other person relating to the documents referred to in paragraphs 1 and 2 above". Mr Blackburn submitted that this was "too wide". Determination of whether a claim for production of documents on subpoena is “too wide” involves a balancing exercise, and the considerations are the apparent relevance of the documents called for on the one hand, and the burden of compliance on the other.

8 In circumstances where it is alleged that Fairfax and Mr Priest are in possession of the documents referred to in paragraphs 1 and 2 of the Subpoena and the Notice, and that those documents contain confidential information, it is plain that documents recording communications between Fairfax, Mr Priest and others in relation to those documents might well cast light on the circumstances in which they were received, used, and/or held, and with what notice they were received; the test of “apparent relevance” is plainly satisfied. There is absolutely no evidence before me that compliance would occasion any burden to the recipients of the subpoena, let alone any undue burden. On that basis, the balancing exercise plainly favours production.

9 Paragraph 3 of the Notice and the subpoena claims, in one case, "any document", and in the other "all documents", which contain or constitute a copy, extract or excerpt of the documents referred to in paragraphs 1 and 2. It seems to me excessive to require that every extant copy of the subject documents be produced on subpoena, and it should be sufficient if the original or a copy of each document containing or constituting a copy extract or excerpt be produced.

10 It will be sufficient compliance with paragraph 3 of the Notice and the Subpoena if the recipient produces the original or a copy of each document which contains or constitutes a copy, extract or excerpt of any of the document referred to in paragraphs 1 and 2. I order that the Notice of Motion be otherwise dismissed.

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