Supreme Court
New South Wales
Medium Neutral Citation: McLachlan v Whelan Browne [2019] NSWSC 514 Hearing dates: 21 September 2018 Date of orders: 21 September 2018 Decision date: 07 May 2019 Jurisdiction: Common Law Before: Rothman J Decision: (1) Motions setting aside subpoenas dismissed.
(2) In relation to all subpoenas except to Tracey Spicer
(a) Subpoena paragraph 1 amended by deleting words “and/or evidencing”;
(b) Subpoena paragraph 2 allowed;
(c) Subpoena paragraph 3 amended by inserting “(i.e. metadata)” after “records”;
(d) Subpoena paragraph 4 allowed, including in the subpoena to Tim Maddren;
(e) Subpoena paragraph 5 allowed;
(f) Subpoena paragraph 6 allowed.
(3) In relation to the subpoena to Tracey Spicer, subpoena allowed subject to deleting “and/or evidencing”.
(4) The Applicants shall pay the Plaintiff’s costs of and incidental to the motions.Catchwords: CIVIL PROCEDURE – subpoenas – objection to terms – motion to strike out in part – “fishing” – adjectivally relevant – use of the term “evidencing” – motion dismissed – some alterations effected Legislation Cited: Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Cases Cited: Lindsay-Owen v HWL Ebsworth Lawyers [2017] NSWSC 1692
One.Tel Ltd (in liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491
Portal Software v Bodsworth [2005] NSWSC 1115Category: Procedural and other rulings Parties: Craig McLachlan (Plaintiff/Respondent)
Christie Whelan Browne (First Defendant)
Fairfax Media Publications Pty Limited (Second Defendant)
Tim Maddren (First Applicant)
Erika Heynatz (Second Applicant)
Sophie Norfolk (Third Applicant)
The person referred to in the headings above paragraphs 53 and 62 in the Confidential Annexure (Fourth Applicant)
Angela Scundi (Fifth Applicant)
Tracey Spicer (Sixth Applicant)Representation: Counsel:
Solicitors:
P Richardson (Plaintiff/Respondent)
L Barnett (Defendants)
M Cowden (Applicants)
Mark O’Brien Legal (Plaintiff/Respondent)
Banki Haddock Fiora (Defendants)
Addisons Lawyers (Applicants)
File Number(s): 2018/34244
Judgment
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HIS HONOUR: The plaintiff sues for defamation, for the purpose of which he has served each of a number of persons with a subpoena to produce documents and/or records. The subpoena for production is, at least in part, sought to be set aside by the recipient of the subpoena and/or by the defendants in the proceedings.
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At the time that the matter came before the Court, for determination of the Motions by the defendant and the recipients of subpoenas, the matter was listed urgently. At the time it had been set down for hearing commencing 4 February 2019 for a period of four weeks. In the meantime, because of the existence of other proceedings, the substantive proceedings have been stayed and the hearing which was to have commenced on 4 February 2019 has been vacated.
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Nevertheless, at the time the Motions were listed before the Court, the matter was urgent and orders issued ex tempore on 21 September 2018. At the time, the Court indicated to the parties that it reserved reasons for judgment. The parties indicated that they did not require reasons, but the Court considers that it is under a duty to issue its reasons, not otherwise disclosed in the course of the…
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- AGLC
- McLachlan v Whelan Browne [2019] NSWSC 514
- Case
- [2019] NSWSC 514
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was the adjectival relevance of the subpoena's terms. Specifically, the court had to determine if the subpoena went beyond what was necessary to establish the facts relevant to the case. Additionally, the court examined whether the term "evidencing" was appropriately used in the context of the subpoena. The court's consideration involved balancing the need for relevant evidence against the protection of a party's rights from unwarranted intrusion.
In delivering the judgment, the court found that while some aspects of the subpoena were indeed broad, they were not so excessive as to constitute a fishing expedition. The court determined that the term "evidencing" was not inappropriate in this context, provided it was used in a manner that was adjectivally relevant. The court allowed the subpoena but made some necessary alterations to ensure it complied with the legal standards. The motion to strike out parts of the subpoena was dismissed, but with modifications to the terms as deemed necessary by the court.
The final orders included the enforcement of the subpoena with the alterations made by the court. The court’s decision was based on a careful analysis of the subpoena's scope and the appropriate use of language within the legal framework. This ruling underscored the necessity for precise drafting in subpoenas to avoid unnecessary intrusions while ensuring the availability of relevant evidence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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