Hibbert v Nationwide News Pty Ltd (No. 3)

[2016] NSWDC 242

District Court

New South Wales

Medium Neutral Citation:	Hibbert v Nationwide News Pty Ltd (No. 3) [2016] NSWDC 242
Hearing dates:	10 October 2016
Date of orders:	13 October 2016
Decision date:	13 October 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The producing party by its servants or agents is to take all steps and make all necessary inquiries in relation to documents sought in categories 2, 3, 5(k), 9, 11 and 12 from the following persons: (a) The relevant servants or agents of the producing party responsible for providing Chairman’s Reports and other club information to the Manly-Warringah Rugby League Football Club Limited for the purpose of that organisation producing an “Annual Report”, for the period of time for which the documents in paragraph 2 the defendants’ subpoena are sought; (b) The relevant servants or agents of the producing party responsible for dealing with the ARLC and/or the NRL (including the NRL Integrity Unit) for the period of time for which the documents in the defendants’ subpoena in paragraphs 3, 4, 5(k), 9 and 11 are sought; (c) As to paragraphs 11 and 12 of the subpoena, Board members who served for any part of the period of time for which the documents in paragraph 12 of the defendants’ subpoena are sought; (d) In the event that these records (or any part thereof) are asserted to be missing), the producing party to file and serve in 28 days an affidavit from the chairman of the producing party, Mr Penn, setting out the circumstances in which the documents from which the material sought in paragraphs 11 and 12 of the subpoena were first discovered to be missing and the person(s) in whose custody those documents were last known to be held before they were discovered to be missing. (2) The producing party’s solicitor, Mr Unsworth, to file and serve in 7 days an affidavit setting out the basis upon which the claim for legal professional privilege for his 2013 report to the Board is made. (3) Costs reserved. (4) Defendants’ application for compliance with the subpoena stood over for further directions to 17 November 2016.
Catchwords:	SUBPOENA – subpoena for production issued by defendants to third party (“the producing party”) – asserted failure by the producing party to comply over a period of six months – order made for an authorised officer of the producing party to attend court for the purpose of examination in relation to the producing party’s asserted failure to comply with the defendants’ subpoena – whether failure to comply with the subpoena established – order for compliance with the subpoena by further search and (in relation to documents asserted to be missing) by affidavit
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 and 68 Corporations Act 2001 (Cth) Crimes Act 1900 (NSW), s 175 Uniform Civil Procedure Rules 2005 (NSW), Part 33
Cases Cited:	Barkley v Barkley-Brown [2010] NSWSC 746 El-Helou v Smith [2009] NSWSC 741 Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 Hexiva Pty Ltd v Lederer [2006] NSWSC 561 Hibbert v Nationwide News Pty Ltd (No. 2) [2016] NSWDC 206 McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 Murphy v Nationwide News Pty Ltd (Supreme Court of New South Wales, Hunt J, 26 October 1984) Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd and Ors [2006] NSWSC 831 Quach v Vu [2009] NSWSC 131 Sciacca v Langshaw Valuations Pty Ltd [2012] NSWSC 1450 Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 Vucic v Cikes (Supreme Court of New South Wales, Levine J, 17 March 1995) Wray v Wray [2007] NSWSC 164
Texts Cited:	H H Glass, Seminars on Evidence (1970)
Category:	Procedural and other rulings
Parties:	Plaintiff: Darren Hibbert First Defendant/First Applicant: Nationwide News Pty Ltd Second Defendant/Second Applicant: Josh Massoud Respondent: Manly-Warringah Sea Eagles Limited
Representation:	Counsel: Defendants/Applicants: Ms L E Barnett Respondent: Mr D A Robertson   Solicitors: Defendants/Applicants: Ashurst Australia Respondent: Unsworth Legal
File Number(s):	2014/60638
Publication restriction:	None

Judgment

The application before the court

1. On 8 September 2016 I made ex parte orders (Hibbert v Nationwide News Pty Ltd (No. 2) [2016] NSWDC 206) as follows:

1. Manly-Warringah Sea Eagles Limited called outside Court 13D three times at 10:55am – No appearance.

2. An order that an authorised officer of Manly-Warringah Sea Eagles Limited (“the producing party”) attend court on Thursday 6 October 2016 for the purpose of examination in relation to the producing party’s compliance with the defendants’ subpoena issued 28 April 2016.

3. Matter stood over to the Defamation List on Thursday 6 October 2016.

4. Costs of this application reserved.

5. Liberty to apply.

2. Pursuant to those orders, Mr Neil Allan Bare, the Chief Financial Officer of the producing party, Manly-Warringah Sea Eagles Limited, has now attended court, in his capacity as the person in the employ of the producing party who was responsible for answering the subpoena. The producing party, through its counsel, Mr Robertson, has also produced to the court documents which the defendants have tendered (Exhibits E1, F1 and G1). Copies of these documents were not made available to the defendants until Friday 7 October 2016, which was after this application was set down for argument and over five months since the subpoena was issued. An additional document, a report by Mr Unsworth to the Board of the producing party, is the subject of a claim for legal professional privilege

3. Ms Barnett, for the defendants, submits that the contents of these documents and certain of Mr Bare’s answers reveal that a failure to comply with six of the twelve categories of documents sought in the schedule to the subpoena of 28 April 2016.

4. Mr Robertson, instructed by Unsworth Legal on behalf of the producing party, submitted that there had now been full compliance with this subpoena and that any further application should be dismissed.

The relevant legislation

5. Section 68 Civil Procedure Act 2005 (NSW) provides that the court may order production of documents or the examination of a witness in relation to asserted non-compliance with a subpoena. The procedure under Part 33 Uniform Civil Procedure Rules 2005 (NSW) and its interaction with s 68 is set out in Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd and Ors [2006] NSWSC 831.

6. Such applications are rare and, even when successful, result in the issuing party issuing further subpoenae (Sciacca v Langshaw Valuations Pty Ltd [2012] NSWSC 1450) or directions for further searches, rather than punishment of the party asserted not to have complied. Neither party to this application could refer me to any decisions where such an examination had resulted in such findings, or the orders I should make if I were satisfied that there had been no compliance. An application for the producing party to be dealt with for contempt in Barkley v Barkley-Brown [2010] NSWSC 746 was unsuccessful.

7. The procedure to be followed, when a party who served a subpoena for production wishes to test the sufficiency of compliance with that subpoena, is set out by Brereton J in Hexiva Pty Ltd v Lederer [2006] NSWSC 561 at [12]-[15], where his Honour noted that these provisions are not to be used as a means of interrogation to determine whether any other documents exist that may be caught by the subpoena, but to determine whether there has been compliance. Brereton J also sets out the relevant extracts from Moffitt J’s discussion paper “Subpoenae duces tecum”, reproduced in H H Glass, Seminars on Evidence (1970) (at 10-11). This scholarly analysis identified a number of problems in relation to the law of subpoenae and is still relied upon today, as is noted by Brereton J in at [14].

8. However, many of Moffitt J’s observations and proposals for reform, such as his Honour’s suggestion that judges should be able to examine a document where privilege was claimed (at p. 9), are indicative of the very great changes in procedure since his Honour’s observations as to subpoena practice in New South Wales in the 1960s were made, and must be read in that context.

9. The degree to which the law concerning subpoenae to third parties was still undeveloped in the 1960s is confirmed by Moffitt J’s statement (at pp. 10-11) that the extent to which there were procedures available to determine whether a subpoena duces tecum had been complied with by a party or a stranger was a “matter of uncertainty”. That is still the case in relation to the procedure to adopt in relation to complaints of non-compliance; for example, in Quach v Vu [2009] NSWSC 131 at [10], Brereton J emphasised that the questioning of a witness called under s 68 Civil Procedure Act 2005 (NSW) was “not a cross-examination”, although in practical terms that seems to have been how applications of this kind have proceeded.

10. Another point of difference is that Moffitt J referred to this questioning procedure as part of the trial (subpoenae commonly not being permitted prior to trial during the 1960s and indeed restricted for some decades later: see Murphy v Nationwide News Pty Ltd (Supreme Court of New South Wales, Hunt J, 26 October 1984); Vucic v Cikes (Supreme Court of New South Wales, Levine J, 17 March 1995)). It was in that context that Moffitt J stated there was no reason why the court “should not have a discretion to ask of a person required to produce the documents questions for this purpose, either informally or on oath” (at 10) although such a procedure would be viewed with alarm if attempted now. It was also in this context that Moffitt J went on to note the four categories that would be excluded from such questioning, the last of which is relied upon by Mr Robertson in this application, namely to doubt whether questions could be asked as to the producing party’s “system of books or the like, so that this material could be used to search for other evidence or to enable a different subpoena to be framed”.

11. Noting all these uncertainties about the form and procedure of such an examination, I permitted Ms Barnett’s questions on these issues, noting Palmer J’s observations in Pyoja Pty Ltd v 284 Bronte Road Developments Pty Ltd and Ors as to the extent to which examination of the witness will be permitted. I also took these uncertainties into account when determining what orders I should make.

What further orders should be made if there has been no compliance?

12. This brings me to the next difficulty, namely the degree to which non-compliance should result in further orders and, if so, what those orders should be.

13. Since Moffitt J’s extra-curial views were expressed, more than fifty years ago, there have been vast changes to business record-keeping methods (now generally entirely electronic) as well as to the production of documents under subpoena. The answering of a subpoena by businesses, government departments and individuals is now a routine part of interlocutory litigation procedure, rather than a specific step reserved to the trial. The expectation that commonly kept business records will be produced to the court without difficulty is high. Businesses would have difficulty being excused from production on the grounds put forward in the 1960s or 1970s, namely that records such as board minutes cannot be located, or that the provision of such documents would in some way affect the conduct of their business.

14. All of this means that it is probably more likely now, in these days of electronic record-keeping, that failure to produce standard business records such as minutes of board meetings would result in a finding that there had not been compliance with the obligation to produce. The difficulty is that the legislative provisions in relation to non-compliance with subpoenae have not kept up with the changes to court procedure and electronic record-keeping. However, the prospect of a party who has not complied with such an order being the subject of an application to be dealt with for contempt of court under s 68 is in my view not the way to proceed. This is because, by reason of s 56 Civil Procedure Act, the court has broad powers as to the appropriate steps to take. In my view s 68 needs to be construed with the overriding s 56 principles in mind.

15. Analogously, in El-Helou v Smith [2009] NSWSC 741, Harrison J ordered a plaintiff to provide authority to a defendant in relation to Centrelink benefits that the plaintiff had refused to produce, noting specific references to s 56 Civil Procedure Act 2005 (NSW) in similar circumstances by Gzell J in Wray v Wray [2007] NSWSC 164 (at [12]) and by the New South Wales Court of Appeal in Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [36].

16. What is important is to ensure the fair hearing of the trial in these proceedings, rather than focus on the asserted failures of the producing party. Taking all of the above into account, I have exercised great caution in relation to the orders sought by the defendants against the issuing party. I have also taken into account that the producing party is a sporting organisation with considerable reliance upon voluntary assistance, and that many of the records which are sought relate to documents produced by volunteers who are no longer associated with the club. I have also taken into account that Mr Bare has performed this quite difficult job without assistance (in fact, this seems to have caused most of the problems) and that he recently inherited a position of employment after a situation of some turmoil in the club, and in circumstances where his predecessor appears to have been less than helpful in relation to the production of documents.

What needs to be established for an order for compliance to be made?

17. A common factor in other proceedings where orders for examination under s 68 have been made is that no documents are provided in answer to the subpoena despite lengthy correspondence, in circumstances where some of the records sought are documents that the court would expect to be produced.

18. That is the case here. The defendants only brought this application after an exchange of correspondence over a period of six months, at the end of which two documents were provided to them but no documents at all were provided to the court. In addition, the explanations given for the failure to produce (that the categories were “too broad”, or that there was no reference to Mr Hibbert’s nickname) are very different to the explanations now proffered.

19. Where there has been a significant failure to comply, in the form of claims that documents are missing or destroyed, the court may take a “robust” approach to the finding of the relevant facts: Tyco Australia Pty Ltd v Optus Networks Pty Ltd [2004] NSWCA 333 at [246] per Giles JA; McCartney v Orica Investments Pty Ltd [2011] NSWCA 337 at [156] per Giles JA. In both these cases there were allegations about failure to keep the statutorily required records which were not produced.

20. While Mr Robertson submitted there is a difference between omission (failing to produce the documents because they cannot be located) and commission (where someone has removed or destroyed a document), that distinction does not mean that the producing party is excused from asking the relevant officers and/or board members (such as Mr Penn and Mr Kenny) for documents such as the minutes and agendas, and sharing the results of their searches with the defendants.

21. The most important evidence will be an examination of the inquiries made by Mr Bare. As is set out in more detail below, he is a comparatively recent employee (since December 2014), and he attended to this request without assistance from persons who were associated with the club at the relevant time (such as Mr Penn, the chairman); this seems to have been a significant reason for the problems he encountered. The documents tendered by the defendants in relation to categories 2, 3 and 9 make it clear that Mr Dank held some position in the producing party’s organisation and that Mr Hibbert was known to the club by a nickname. The adequacy (or inadequacy) of Mr Bare’s searches in relation to the challenged categories is set out in more detail below.

22. One factor of concern is that documents the producing party is required by statute to keep, such as board documents, minutes and agendas, are all asserted to be missing. Destruction or removal of company records may, in appropriate cases, amount to a contravention of s 175 Crimes Act 1900 (NSW) and allegations that such documents are all missing are matters of concern. Again, Mr Bare’s obligation is to make proper inquiries of the relevant persons, including the former secretary and board members such as Mr Penn and, as is set out below, that does not appear to have occurred.

23. Finally, compliance with a subpoena requires a degree of common sense. For example, Mr Unsworth’s 2013 report to the Board, for which a claim of legal professional privilege is made, is a document which would have been amongst those missing Board papers, agendas and minutes. The agenda and minutes referring to that report are documents which would fall within the call of the subpoena. Why those documents have vanished, but the producing party has retained Mr Unsworth’s report, Is unexplained, but suggestive of the fact that more documents relating to this report (perhaps even a file) may exist.

The relevant portions of the subpoena

24. The relevant portions of the subpoena with which the defendants claim the producing party has not complied are as follows:

“…

2. All documents referring to or concerning the engagement or retainer by the Club of Stephen Dank.

3. All documents referring to or concerning the use of, or potential use of, any of the following supplements/substances (Supplements) by any player contracted to the Club (Club player) during the period January 2005 to 31 March 2013:

(a) CJC-1295;

(b) GHRP-6;

(c) Thymosin.

…

5. All documents referring to or concerning the sale and/or provision of any of the Supplements to the Club, or any Club player, by any of the following persons or entities during the period January 2005 to 31 March 2013:

…

(k) ASN Advanced Sports Nutrition;

…

9. All documents referring to or concerning meetings or communications between representatives of the Club and ASADA in relation to ASADA’s investigation into the use of drugs in sport and referring to or concerning:

(a) Darren Hibbert; or

(b) any of the Supplements.

…

11. All documents received by the Club from the ARLC and/or the NRL, including the NRL Integrity Unit, referring to or concerning:

(a) Darren Hibbert; or

(b) any of the Supplements.. [sic]

12. All records of meetings of the Club Board of Directors between the period January 2005 to present including agendas, minutes of meetings and board papers referring to or concerning the following:

(a) Darren Hibbert;

(b) Stephen Dank;

(c) ASADA’s investigation into the use of drugs in sport; and/or

(d) any investigation or enquiries by the ARLC and/or the NRL, including the NRL Integrity Unit, in relation to the use or potential use of any of the Supplements by any Club player.”

25. The documents sought relate to the particulars of truth in the amended defence filed by the defendants in these proceedings. There is no submission that the documents sought under subpoena in any way go beyond the issues identified in those particulars.

Category 2

26. The response from the producing party to the request for the documents in category 2 was to state “Dank was not engaged or retained by [the producing party]” (letter from Unsworth Legal to the solicitors for the defendants dated 6 May 2016).

27. The defendants rely upon the following documents as indicating that there must be documents concerning the engagement or retainer by the Club of Stephen Dank:

1. Annual reports for the years ending 2008, 2009, 2010 and 2011 from an organisation called “Manly-Warringah Rugby League Football Club Limited” (Exhibit B1);

2. A media release in relation to Mr Stephen Dank’s employment (Exhibit C1), the contents of which were subsequently published;

1. Documents provided by the producing party to the court on 10 October 2016 referring to Mr Dank (Exhibit G1).

28. All of the documents tendered refer to Mr Dank as being a person employed by the producing party.

29. The first of these is a series of annual reports (Exhibit B1), setting out the football activities of the Manly-Warringah Sea Eagles, whose logo features prominently on the first page. The same reference to Mr Dank appears in each of these four annual reports.

30. The connection between the producing party and the “Manly-Warringah Rugby League Football Club Limited” may be demonstrated by a series of references to the producing party’s role and activities. For example, on page 2 of the 2008 annual report (and indeed in each subsequent report) there appears a document headed “Chairman’s Report” from Mr Scott Penn, a person acknowledged to have been the chairman of the Manly-Warringah Sea Eagles Limited at the relevant time, and who described himself as such. In the course of that report, Mr Penn not only thanks the Sea Eagles players but goes on to say:

“It is very important for me to recognize the outstanding achievements of our CEO Grant Mayer and the entire Head Office team for a fantastic year…

I would also like to thank the Sea Eagles board for your commitment, stability and solidarity this year; it has certainly enhanced our culture and made the club even stronger…

…

A special thank you also to our partners at the Manly-Warringah Leagues Club, to Bob Reilly and Peter Spray and all the Board and staff, we appreciate all the support.”

31. On the following page there appears the following list of “Manly-Warringah Sea Eagles Limited 2008 Officials”. Underneath this appears a heading “Board of Directors” in which Mr S Penn is identified as the Chairman. The Chief Executive Officer is the Mr Mayer referred to in Mr Penn’s earlier report. Adjacent to the role “Exercise Physiologist” appears the name “S Dank”.

32. Following this list of personnel, there is a report by the Head Coach, Mr Hasler, which refers to “the loyal and professional coaching, training and medical staff and an understanding Board” (page 5), in circumstances where this is clearly a reference to the persons named in the list of officials. The entries in the reports for 2009, 2010 and 2011 are similar.

33. There are also references to the number of meetings called and the names of the directors who attended these meetings (see, for example, the 2009 annual report at page 3).

34. Mr Bare denied that these documents bore any relationship with the producing party. He told the court, in relation to all of the “Annual Reports” which form Exhibit B1, that the Manly-Warringah Rugby League Football Club Limited was a voluntary organisation with approximately 100 members which held one preference share in the producing party. It was therefore “not an organisation we hold any jurisdiction over” and that the documents referred to as annual reports were “not an official document”. Not only were they not official, but their accuracy was open to question.

35. The next document referring to Mr Dank is a media release from a Richard Maxton (described as the “Digital Media Manager”), attached to an email dated 6 February 2013 addressed to Mr Maxton himself but which starts “Hi all”, from which I infer it is some form of group email. The text is:

“Please see the attached statement regarding Stephen Dank’s employment by Manly Warringah Sea Eagles.”

36. Attached to this is a document stamped “Media Release” which is undated, unlike the email which is dated 6 February 2013. The text of that media release is as follows:

“The Manly Warringah Sea Eagles employed Stephen Dank in an official capacity as a consultant between 2006 and 2010.

During that time, we never had any concerns. We always complied with all anti-doping protocols of the WADA Code and the NRL. The Club will make no further comment.”

37. Mr Bare said that not only was Mr Maxton no longer employed by the Manly-Warringah Sea Eagles, but his position when he was there would have been “the lowest of the low” and he was most probably a voluntary worker who was not even paid. None of the people in the producing party’s media department had been employed as at 6 February 2013 and there was no way to make enquiries of those persons. Mr Bare doubted that the media release was in fact ever released.

38. Mr Bare was then shown an article published by ABC News on the same date as his email (Wednesday 6 February 2013), but at 9:47am, some two hours after Mr Maxton’s email of 6 February 2013 was sent out. The text of that article was as follows:

“Sea Eagles never had 'concerns' about sport scientist

Posted Wed 6 Feb 2013, 9:47am

NRL club Manly says it never doubted the practices of a sports scientist during his five years working at the Sea Eagles.

Stephen Dank has been linked to the supplement inquiry enveloping AFL club Essendon, with the Australian Sports Anti-Doping Authority and the league's integrity unit asked to look into possible misuse of supplements by players in 2012.

Dank left the Bombers midway through last season.

The media­-shy Dank worked for the Sea Eagles between 2006 and 2010, where he was an integral part of making the club a leader in sports science in Australia.

The Sea Eagles, who won a premiership in 2008, released a statement confirming Dank's employment and expressing confidence no rules were broken.

“The Manly Warringah Sea Eagles employed Stephen Dank in an official capacity as a consultant between 2006 and 2010,” the statement read.

“During that time, we never had any concerns.

“We always complied with all anti­doping protocols of the WADA Code and the NRL.

“The club will make no further comment.”

Dank has also undertaken consultancy work at NRL club Cronulla, as well as AFL team Gold Coast.

AAP

Topics: nrl, rugby-­league, sport, australian-football­-league, manly­-2095, essendon-­3040” [Emphasis added]

39. I have emphasised the relevant passages from the ABC News article. These are word for word identical with the press release attached to Mr Maxton’s email as sent to “dear all” two hours before publication.

40. I note that the accreditation at the end is AAP, Associated Press, which suggests publication not only to the ABC (which is a separate organisation) but to other media outlets such as AAP.

41. Mr Bare acknowledged there was a “media unit” in the club at the time of the press release. The circumstances in which that email was prepared are circumstances as to which the defendants seek further documents, as Mr Bare’s evidence that he searched the email system without identifying other emails in this chain is insufficient compliance.

42. The third set of documents referring to Mr Dank consist of emails dated 12 and 13 March 2013 from Mr Unsworth, the solicitor for the producing party, attaching draft speaking notes concerning the ASADA investigation (Exhibit G1). There is also an email from David Perry to the Chairman, Mr Scott Penn, Mr Phil Sidney and Mr Unsworth dated 12 March 2013. The original version of these speaking notes states:

“ASADA said that in 2011 there were a number of providers of CJC 1295. ASADA did not say who they were, but it did say that Steve Dank was not the only provider.”

43. This was said in the context of statements by Mr Unsworth that any player who used or attempted to use or possessed CJC 1295 in 2011 may be liable to disqualification from competition for two years or, if a player trafficked CJC 1295, to disqualification from the competition for four years. The speaking notes went on to state that it was in the players’ interests to come forward if appropriate and that the Club wish to establish a formal process for players to come forward on the use of peptides.

44. The “message” put to the players was:

1. ASADA said that it has documents which linked either some or “about 6” players to the use of peptides, particularly CJC 1295, during 2011;

2. If this was true, the players should come forward to Mr Unsworth and information received by him from the player on a confidential basis would not be disclosed without the consent of the player providing it.

45. These draft speaking notes were the subject of amendment. Those amendments included the removal of the line “but it did say that Steve Dank was not the only provider”.

46. On 12 March 2013, Mr Unsworth sent an email to Mr Eyers of the NRL Integrity Unit stating:

“I conducted a general review of Manly Sea Eagles’ anti-doping processes for the board, following ASADA’s briefing and before receiving the notice dated 1 March 2013.

At the time of ASADA’s briefing to its players, Manly Sea Eagles invited any players who have used banned substances to come forward.

My review did not reveal the use of banned substances by any Manly Sea Eagles player and no players have come forward to reveal the use of banned substances.

Manly Sea Eagles has no documents to produce in relation to the use of banned substances by any of its players.” (Exhibit F1)

47. I also note the contents of Exhibit E1 which consists of a notice to Manly-Warringah Sea Eagles from ASADA which played a part in triggering this response.

48. A report by Mr Unsworth to the Board is in existence but is the subject of a claim for legal professional privilege. Ms Barnett has requested that an affidavit be filed setting out the basis upon which legal professional privilege is claimed, so that her clients may consider whether to bring an application for access to these documents.

49. Mr Robertson offered to call Mr Unsworth to explain the basis upon which legal professional privilege may be claimed. This application was made shortly before the luncheon adjournment in circumstances where Ms Barnett was unavailable to appear in the afternoon. In those circumstances I proposed to make the orders sought by Ms Barnett. That will give Mr Unsworth an opportunity to put his position before the court in affidavit form and it may well be that that is the end of the matter.

Comments concerning the documents in category 2

50. The searches carried out by Mr Bare consisted of searches of current records, which would not have located material of the kind sought by the defendants.

51. It is clear from the exhibits that between 2008 – 2013, Mr Dank was identified by the club in annual reports and a press release as an employee or independent contractor or service provider (whether paid or voluntary). Now that Mr Bare’s attention has been drawn to those documents, he has a clearer picture of the material to look for, and the correct persons to ask, which would include the makers of the documents in the annual reports (particularly the chairman, Mr Penn) and Mr Unsworth. Mr Unsworth’s report is probably part of a larger file which may contain relevant documents referring to Mr Dank. Accordingly I propose to direct Mr Bare to use his best endeavours to locate further documentation from these sources.

Categories 3 and 9

52. Category 3 seeks documents referring to the use or potential use of the three named substances and category 9 seeks documents referring to meetings between the Club and ASADA in relation to any of these supplements or the plaintiff.

53. In the affidavit of Mr Hoy sworn on 7 September 2016 attached a schedule of the relevant paragraphs of the subpoena, the documents to produce and the reasons for objection or non-production. Objection was taken to this category in the subpoena on the basis “this category is too broad. See 4 which is more specific”. The objection to paragraph 4 (and also to paragraphs 5-10) was “there are none”.

54. Ms Barnett submits that Exhibits B1, F1 and G1 all indicate the existence of documents falling within category 3 of the subpoena. This would include not only documents relevant to the conducting of a review (whether the subject of a claim for privilege or not, the documents referred to in the speaking notes, including any documents concerning speaking to any players or noting that no player had come forward).

55. Mr Robertson submitted that the documents provided to the solicitors for the defendants on Friday and which were marked Exhibits E1, F1 and G1 were the only documents the producing party had and that they should not be construed to give rise to the presumption that there were further documents.

Comments concerning the documents in categories 3 and 9

56. The documents Ms Barnett tendered were only recently discovered, apparently as a result of recent searches. I accept Ms Barnett’s submission that there are likely to be more. Accordingly I propose to direct Mr Bare to use his best endeavours to search for the documents referred to by Ms Barnett as set out in her submissions and to use the information in the documents the producing party has now located to continue those searches. In particular, he should direct such search inquiries to persons who dealt with ASADA in relation to such issues, such as Mr Penn and Mr Unsworth.

Category 5(k)

57. This category seeks documents referring to the sale and/or provision of supplements to the Club or the players by ASN Advanced Sports Nutrition. It does not appear to be in dispute that this is the correct name of the organisation in question. There is a reference in Mr Unsworth’s speaking notes as follows:

“I have received information which indicates that Australian Nutrition and Sports may have sold CJC 1295 in 2011. Any player who purchased goods from that company during 2011 is invited to come forward too, so that any suspicion about the goods purchased by them can be dispelled.”

58. Mr Robertson submits that there is no evidence that this organisation, and the organisation the subject of the request in paragraph 5(k) are one and the same. Their names are different. He submits the only way the defendants can obtain this document is to issue a fresh subpoena referring to “Australian Nutrition and Sports”.

59. If such a subpoena were issued, and no such organisation existed, in that the organisation in question was the organisation correctly named by the defendants, the producing party would be entitled to refuse to answer that subpoena as well, on the basis that it refers to a non-existent entity. Mr Robertson’s submission is that a subpoena is a document which must be precisely addressed because failure to comply can result in proceedings for contempt of court. In those circumstances, any ambiguity or uncertainty in the subpoena should be strictly construed against the drafter of the subpoena.

60. I do not accept that this is the case. There is no ambiguity or uncertainty. The producing party is well aware of the identity of the organisation about which the defendants have sought production of documents.

Comments concerning the documents in category 5(k)

61. This is a matter for inquiry from Mr Unsworth and I propose to direct Mr Bare to make inquiries from Mr Unsworth as to whether there is a separate entity with the name Mr Unsworth has used in the speaking notes. If there is not, then searches should be made for the documents sought in category 5(k).

Categories 11 and 12

62. The objections taken to production of the documents in categories 11 and 12 were:

“This is too broad. If the category is limited to Hibbert, there are none.”

63. However, Mr Bare’s evidence was that there were no documents in question, whether they refer to Mr Hibbert or not being unknown, because although Mr Bare was able to make inquiries of the accounting and email systems, he was not able to consult any of the “agendas, minutes of meetings and board papers” because none of these exist. Nor were there any documents from the ARLC and/or the NRL (including the NRL Integrity Unit) referring to or concerning any of the supplements or Mr Hibbert.

64. As to the agendas, minutes of meetings and board papers, Mr Bare’s evidence was that he commenced employment on 1 December 2014 as the Chief Financial Officer. At that time, all of the agendas, minutes of meetings and board papers for the producing party for the whole of the period sought (2005 onwards) were missing. He had been able to reconstruct the 2014 minutes with the help of the Chairman but the change in the board representation and staff personnel had prevented him from even obtaining these records for previous years. There was no reference to any of the material the subject of the subpoena for the year 2014. For those reasons, there were in fact no documents to produce for the simple reason that there were no documents.

65. The obligation of members of a board to keep and preserve business records of this nature is the subject of a series of requirements under the Corporations Act 2001 (Cth). Ms Barnett’s principal complaint is that Mr Bare made these inquiries without consulting the current Chairman, Mr Penn, who was the Chairman at the time, but she also noted the inconsistency in relation to whether the previous Secretary, Mr Kenny, who had been appointed by ASIC, according to Mr Bare, had refused to produce these documents or had simply not answered correspondence requesting these minutes.

Comments concerning the documents in categories 11 and 12

66. This was the least satisfactory part of Mr Bare’s evidence. The absence of all these Board records is an unacceptable explanation for failure to comply. The parties did not address me as to the form of orders to be sought if I came to such a view.

67. The step that I propose to take in this regard, if further searches do not disclose these documents, is to require the chairman, Mr Penn, who I understand was the chairman of the producing party at the relevant times, to provide an affidavit concerning the circumstances in which the documents from which the material sought in paragraphs 11 and 12 of the subpoena were first discovered to be missing and the person in whose custody those documents were last known to be held before they were discovered to be missing. That will enable the defendants to issue a subpoena to those person or persons for the documents they seek.

68. These proceedings are listed for hearing in 2017. There is some urgency in relation to the obtaining of these documents. Accordingly I propose to allow 28 days for the preparation of the affidavit and to relist these proceedings at 9:00am on 17 November 2016 for further directions.

69. I have reserved the issue of costs. I have also made an order for Mr Unsworth to file and serve an affidavit in relation to the document the subject of the claim for legal professional privilege.

Orders

1. The producing party by its servants or agents is to take all steps and make all necessary inquiries in relation to documents sought in categories 2, 3, 5(k), 9, 11 and 12 from the following persons:

1. The relevant servants or agents of the producing party responsible for providing Chairman’s Reports and other club information to the Manly-Warringah Rugby League Football Club Limited for the purpose of that organisation producing an “Annual Report”, for the period of time for which the documents in paragraph 2 the defendants’ subpoena are sought;

2. The relevant servants or agents of the producing party responsible for dealing with the ARLC and/or the NRL (including the NRL Integrity Unit) for the period of time for which the documents in the defendants’ subpoena in paragraphs 3, 4, 5(k), 9 and 11 are sought;

3. As to paragraphs 11 and 12 of the subpoena, Board members who served for any part of the period of time for which the documents in paragraph 12 of the defendants’ subpoena are sought;

4. In the event that these records (or any part thereof) are asserted to be missing), the producing party to file and serve in 28 days an affidavit from the chairman of the producing party, Mr Penn, setting out the circumstances in which the documents from which the material sought in paragraphs 11 and 12 of the subpoena were first discovered to be missing and the person(s) in whose custody those documents were last known to be held before they were discovered to be missing.

2. The producing party’s solicitor, Mr Unsworth, to file and serve in 7 days an affidavit setting out the basis upon which the claim for legal professional privilege for his 2013 report to the Board is made.

2. Costs reserved.

3. Defendants’ application for compliance with the subpoena stood over for further directions to 17 November 2016.

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I certify the preceding 69 paragraphs and 4 ordersto be a true copy of her Honour Judge Gibson’sreasons for decision dated 13 October 2016

…………………………….. (Associate)