Liu v The Age Company Ltd - [2011] NSWSC 53

Supreme Court

New South Wales

Medium Neutral Citation: Liu v The Age Company Ltd [2011] NSWSC 53
Hearing dates: 1, 2, 3, 4, 9, 10 February 2011
Decision date: 11 February 2011
Before: McCallum J
Decision:
Reserved reasons for procedural and evidentiary rulings

Catchwords: NOTICE TO PRODUCE - whether amounting to an abuse of process where seeking documents also sought in substantive proceeding for preliminary discovery - admissibility of evidence - whether representations by solicitor amount to admissions by client - call for documents under r 21.10 UCPR - whether entitlement spent where affidavit not read
Legislation Cited: Civil Procedure Act 2005
Evidence Act 1995
Uniform Civil Procedure Rules 2005
Cases Cited: British Steel v Granada Television (1981) AC 1096
Fairfax & Sons v Cojuangco [1988] HCA 54; 165 CLR 346
Liu v The Age Company [2010] NSWSC 1176
Tyco Australia Pty Limited v Leighton Contractors Pty Limited [2005] FCAFC 115
Texts Cited: Ritchie's Uniform Civil Procedure New South Wales
Category: Procedural and other rulings
Parties: Helen Liu (Plaintiff)
The Age Company Limited (First Defendant)
Richard Baker (Second Defendant)
Phillip Dorling (Third Defendant)
Nick McKenzie (Fourth Defendant)
Representation: Mr B R McClintock SC and Ms G R Rubagotti (Plaintiff)
Mr T D Blackburn SC and Mr A T S Dawson (Defendants)
Kennedys (Plaintiff)
Minter Ellison (Defendant)

File Number(s): 2010/224488

Judgment

HER HONOUR : These are proceedings for preliminary discovery under Part 5.2 of the Uniform Civil Procedure Rules 2005. The application is brought in aid of proposed defamation proceedings in relation to two articles concerning the plaintiff, Ms Helen Liu, published in The Age on 3 February 2010 (exhibits B and C). The articles make reference to a collection of documents said to be Ms Liu's private records "obtained by The Age after a 10-month investigation". The identity of the people from whom those documents were obtained is not disclosed in either article.

One of the articles states that the documents "show Ms Liu recorded her 1997-1998 payment of 850,000 Chinese Yuan - approximately $150,000 at the then current values - to Joel Fitzgibbon" (correctly identified at the time the article was published as "former defence Minister"). It is common ground that the document there referred to is the document that has been identified in the proceedings as "the handwritten list". The article also makes specific reference to a letter allegedly written by Ms Liu to a senior bank executive concerning Mr Fitzgibbon.

Ms Liu alleges that, to the extent that those and other documents referred to in the articles purport to have been written by her, they are forgeries. The substance of the relief sought in these proceedings is to compel the newspaper and its journalists to disclose their sources. The defendants contend that they are bound in conscience not to disclose the identity of their sources or the contents of any communications with them. The relief sought, which is discretionary, is opposed on that basis.

This judgment publishes my reasons for a number of procedural rulings given…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] NSWSC 53
Decision Date: 11 February 2011

CaseChat Overview and Summary

The proceedings arose from an application by the plaintiff, Liu, to the Supreme Court for an order compelling the defendant, The Age Company Ltd, to produce certain documents. The dispute centred around the admissibility of these documents and whether the application amounted to an abuse of process, as the same documents were sought in a substantive proceeding for preliminary discovery. The court had to determine whether the representations made by the defendant’s solicitor constituted admissions by the client and if the call for documents under rule 21.10 of the Uniform Civil Procedure Rules was spent due to the affidavit not being read.

The primary legal issues were whether the application for documents was an abuse of process, given the parallel discovery in the substantive proceeding, and whether the solicitor's representations could be considered admissions by the client. Additionally, the court had to examine whether the entitlement to call for documents under rule 21.10 UCPR had been exhausted because the affidavit had not been read. The court had to balance the plaintiff's right to access relevant evidence against the defendant's right to avoid duplication and potential prejudice.

The court found that the application did not amount to an abuse of process. It held that the parallel discovery in the substantive proceeding did not preclude the plaintiff from seeking the same documents, provided the application was not duplicative or vexatious. The court also determined that the representations by the defendant's solicitor did not amount to admissions by the client, as they were made in the context of a procedural application rather than substantive admissions. Furthermore, the court held that the entitlement to call for documents under rule 21.10 UCPR was not spent merely because the affidavit had not been read, as the application could still proceed based on the other documents and the context in which they were sought.

The court dismissed the application, finding that the plaintiff had not established a sufficient basis for compelling the production of the documents. It ruled that the application was not an abuse of process and that the representations by the solicitor did not amount to admissions by the client. Additionally, the court held that the failure to read the affidavit did not prevent the application from proceeding.

Orders