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Messade v Baires Contracting Pty Ltd

Messade v Baires Contracting Pty Ltd

Case [2011] VSC 56 28 February 2011

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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…

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 Messade v Baires Contracting Pty Ltd

Details

AGLC: Messade v Baires Contracting Pty Ltd [2011] VSC 56
Case: [2011] VSC 56
Decision Date: 28 February 2011 (Reasons 2 March 2011)

CaseChat Overview and Summary

The matter before the court involved Messade, the plaintiff, and Baires Contracting Pty Ltd, the defendant. The primary dispute centred around the validity and scope of a notice to produce issued by Messade to Baires Contracting. The case was heard in the Supreme Court of New South Wales. Messade sought documents relevant to the proceedings, which Baires Contracting contested on the grounds that the notice was overly broad and constituted a fishing expedition.

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