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McLachlan v Whelan Browne

McLachlan v Whelan Browne

Case [2019] NSWSC 514 7 May 2019

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Abuse of Process

Civil Litigation & Procedure

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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 1115
Category: 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:
P Richardson (Plaintiff/Respondent)
L Barnett (Defendants)
M Cowden (Applicants)
Solicitors:
Mark O’Brien Legal (Plaintiff/Respondent)
Banki Haddock Fiora (Defendants)
Addisons Lawyers (Applicants)

File Number(s): 2018/34244

Judgment

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.
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.
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…

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.

Continue reading McLachlan v Whelan Browne

Details

AGLC: McLachlan v Whelan Browne [2019] NSWSC 514
Case: [2019] NSWSC 514
Decision Date: 07 May 2019

CaseChat Overview and Summary

In McLachlan v Whelan Browne, the court heard an objection to the terms of a subpoena. The dispute centred around the scope and validity of the subpoena issued by McLachlan to Whelan Browne. The matter was determined in the Supreme Court of Victoria, reflecting the importance of the legal principles at stake. The court was tasked with deciding whether the subpoena's terms were overly broad, amounting to an improper fishing expedition, and whether the use of the term “evidencing” in the subpoena was legally sound.

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