| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7692 of 2009
| JAMAL MESSADE | Plaintiff |
| v | |
| BAIRES CONTRACTING PTY LTD | Defendant |
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JUDGE: | J FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 February 2011 | |
DATE OF RULING: | 28 February 2011 (Reasons 2 March 2011) | |
CASE MAY BE CITED AS: | Messade v Baires Contracting Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 56 | |
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PRACTICE AND PROCEDURE – Notice to produce – Whether legitimate forensic purpose demonstrated – Whether on the cards that the relevant documents would materially assist the defence case – Whether notice to produce constitutes impermissible attempt to seek general discovery – Whether notice to produce constitutes “fishing expedition”.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC Ms T Riddell | Clark Toop & Taylor |
| For the Defendant | Ms M Hartley SC Ms P Cefai-Talbot | Hall and Wilcox |
HIS HONOUR:
Introduction
At the commencement of the common law trial involving the assessment of Mr Messade’s damages claim, the defendant Baires Contracting Pty Ltd[1] (his former employer), sought production of documents pursuant to a notice to produce given on 31 January 2011.
[1]Referred to as “Baires”
The notice to produce sought production by the plaintiff of “all photographs of the plaintiff in hard copy and electronic form relating to overseas travel and taken by the plaintiff from 1 August 2003 to the date of hearing”.
In the course of submissions in the absence of the jury, a further application was made by counsel for Baires, namely:
(a)to amend the notice to include all photographs held on any computer in the possession of the plaintiff;[2]
(b)to order that the plaintiff not tamper or alter any computer generated image of himself.[3]
[2]T 35
[3]T 40
For reasons which I will now set out, I concluded that the terms of the notice were too wide and constituted “fishing”, consequently I determined that Mr Messade is not required to produce any such photographs – if they, indeed, exist.
Applicable principles
The principles applicable to a notice to produce;
… are similar to those imposed by a subpoena and that the considerations which apply to the setting-aside of a subpoena are equally applicable to a notice to produce. Just as a “fishing” subpoena will be set aside, so will a fishing notice to produce.[4]
[4]Crown Joinery Pty Ltd v Lyleho Pty Ltd [2007] VSC 214 [31] per Maxwell P
Recently in the Commissioner of Australian Federal Police v Magistrates’ Court of Victoria & ors,[5] I set out the principles relevant to determining whether a party is required to produce documents under subpoena. I repeat those relevant to this case:-
[5][2011] VSC 3 [28]
(a) it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
(b) the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the…
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- Messade v Baires Contracting Pty Ltd [2011] VSC 56
- Case
- [2011] VSC 56
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the plaintiff had demonstrated a legitimate forensic purpose for the notice to produce. A key issue was whether the documents sought were likely to materially assist the defence case. Additionally, the court needed to decide if the notice to produce was an impermissible attempt at general discovery or if it could be justified as a reasonable step in the litigation process. The court also examined whether the notice constituted a fishing expedition, which would render it invalid.
In its reasoning, the court examined the specific circumstances of the case and the nature of the documents sought. It concluded that while the plaintiff had demonstrated a legitimate forensic purpose, the scope of the notice to produce was excessively broad. The court found that the notice was not narrowly tailored to the specific issues at hand, which led to the conclusion that it bordered on being a fishing expedition. The court emphasised that such broad notices could undermine the integrity of the litigation process by imposing an undue burden on the opposing party. Ultimately, the court ruled that the notice to produce was invalid and did not constitute a permissible means of discovery.
The court ordered that the notice to produce be quashed and directed the parties to engage in further negotiations to draft a more narrowly tailored notice that would be acceptable to both parties. This decision underscored the importance of balancing the rights of litigants to obtain necessary evidence with the need to prevent undue harassment and expense in the litigation process.
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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