Hadid, Albert v Lenfest Communications Inc

[1996] FCA 193

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 36 of 1995
  )
GENERAL DIVISION                  )

BETWEEN:ALBERT HADID

Applicant

AND:LENFEST COMMUNICATIONS INC

First Respondent

GARY LENFEST

Second Respondent

BAIN CAPITAL MARKETS LIMITED

Third Respondents

WAYNE BURT

Fourth Respondent

AUSTRALIS MEDIA LIMITED
  Fifth Respondent

RODNEY PRICE
  Sixth Respondent

AND:LENFEST COMMUNICATIONS INC

Cross-Claimant

ALBERT HADID
  Cross-Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    24 APRIL 1996

REASONS FOR JUDGMENT

The motion before the Court is brought by Mr Ferrier to set aside a subpoena served upon him at the instance of the first and second respondents, requiring the production of:

"All documents relied upon by you or your staff in the course of preparing your reports dated 10 July 1995 and 16 November 1995 in these proceedings."

As the form of the subpoena makes clear, Mr Ferrier has prepared expert reports in the proceedings.  No doubt in the course of preparing those reports he has had regard to certain material.  In essence, what the first and second respondents appear to wish to do, by producing a subpoena, is to ascertain what the material is upon which Mr Ferrier relied when the report was prepared.

In correspondence between the solicitors for Mr Ferrier and the solicitors for the first and second respondents, Mr Ferrier's solicitors advised that there were five classes of documents covered by the subpoena, these being:

"1.All documents discovered by the parties to the proceedings.

2.All documents produced pursuant to subpoenas to East Coast Pay TV Limited, CTV Pty Limited and STV Pty Limited.

3.All pleadings, discovery lists and lay affidavits filed in the proceedings.

4.Privileged documents...

5.Publicly available documents obtained by Ferrier Hodgson being the following ...".

Not surprisingly, the solicitors for the first and second respondents were somewhat bemused to learn that Mr Ferrier had relied upon each and every document which had been discovered in the proceedings.  It is my understanding that a considerable volume of material has been discovered.

Counsel for Mr Ferrier submits that the subpoena is ambiguous in its use of the words relied upon and for that reason should be set aside.  Reference is made to various dictionary meanings of the words "rely upon" as indicative of ambiguity in the context.  With respect, I do not think the words "rely upon" are themselves objectionable because they are uncertain.  I do not think that a person to whom the subpoena is addressed would be in any confusion in determining what had been relied upon in preparing a particular report.

However, there is a more serious problem.  With the subpoena it may be said to be an abuse of the process of a subpoena for it to be used as a means of interrogating the recipient of the subpoena.  In essence, it may be inferred that what the first and second respondents really want to do is to ascertain what documentary material was taken into account by Mr Ferrier.  (In using the words "taken into account" I do not want to suggest that there is not a difference between those words on the one hand, and "rely upon" on the other.)

It has been pointed out from time to time that expert reports may not be admissible if they exclude the fundamental material forming, in essence, the premise upon which they are based.  The matter is discussed in a judgment of Beaumont J in Arnotts v Trade Practices Commission (No 2) (1989) 21 FCR 306. In saying this I do not suggest that Mr Ferrier's reports fall into this category. I have not read them and it may well be that in their present form they are quite admissible. It would be improper for me to make a comment about that at the moment.

However, there is no doubt that at some stage in litigation it could be important for Mr Ferrier to advise the material which he relied upon in preparing his report to enable the report to be dealt with properly in cross-examination.  As a matter of court management it is convenient that if there be an issue as to the material upon which Mr Ferrier relied, it be sorted out before the trial.  Of course the trial might be affected by a dispute arising at the time of the trial, or alternatively by Mr Ferrier indicating that he had relied upon material which was not, at that point of time, provided to the first and second respondents.

In these circumstances though, I would agree that the subpoena is not an appropriate procedure to use as a substitute for interrogatories.  The convenient course would be that I make a direction requiring the filing of a supplementary affidavit on the part of Mr Ferrier setting out the documentary material upon which he relied in preparing his report, other than the material in respect of which legal professional privilege exists.  That affidavit should be filed within ten days of today.

If it should then appear that there is material which has not been produced to the first and second respondents, then no doubt a subpoena can be issued in respect of specifically listed documents.

I would set aside the subpoena and hear the parties about costs.

I certify that this and the
preceding four (4) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date: 

Counsel and Solicitors           F Gleeson instructed by

for Mr I Ferrier, the            Clayton Utz

Applicant to the Motion:

Counsel and Solicitors           B Shields instructed by

for the First and                Corrs Chambers Westgarth

Second Respondents:

Date of Hearing:                 24 April 1996

Date Judgment Delivered:             24 April 1996