FEDERAL COURT OF AUSTRALIA
Rush v Nationwide News Pty Limited (No 3) [2018] FCA 1546
File number: NSD 2179 of 2017 Judge: WIGNEY J Date of judgment: 26 September 2018 Catchwords: PRACTICE AND PROCEDURE – application to set aside parts of subpoena – where it is “on the cards” that documents may materially assist issuing party – application dismissed Cases cited: Alister v The Queen (1984) 154 CLR 404 Date of hearing: 26 September 2018 Registry: New South Wales Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 3 Counsel for the Applicant: Ms S Chrysanthou Solicitor for the Applicant: HWL Ebsworth Lawyers Counsel for the Respondents: Ms J Treherne Solicitor for the Respondents: Ashurst Australia Counsel for the subpoenaed party, Sydney Theatre Company: Ms M Rabsch Solicitor for the subpoenaed party, Sydney Theatre Company Allens ORDERS
NSD 2179 of 2017 BETWEEN: GEOFFREY ROY RUSH
Applicant
AND: NATIONWIDE NEWS PTY LIMITED
First Respondent
JONATHON MORAN
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
26 SEPTEMBER 2018
THE COURT ORDERS THAT:
1.Pages 1 – 6 of “Exhibit NP1” to the affidavit of Nicholas Pullen sworn 24 September 2018 be treated as confidential and are not to be released to third parties.
2.The Sydney Theatre Company Limited’s interlocutory application, filed on 12 September 2018, be dismissed with costs.
3.The subpoena to Sydney Theatre Company Limited, dated 3 September 2018 and issued at the request of the applicant, be stood over to 3 October 2018 at 9:30am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)WIGNEY J:
By interlocutory application dated 12 September 2018, the Sydney Theatre Company Limited seeks to set aside paragraphs 3, 4, 5, 7, 8 and 13 of the subpoena dated 3 September 2018, issued at the request of Mr Geoffrey Rush and served on the Theatre Company. The sole basis for the objection to those paragraphs of the subpoena is that some or all of the documents required to be produced pursuant to them would not be relevant to the issues that may arise for consideration in this matter.
In my opinion, it is at least “on the cards” that the documents that may be produced in answer to those paragraphs of the subpoena will, or at least may, materially assist Mr Rush: Alister v The Queen (1984) 154 CLR 404 at 414-415. It may also be the case that the fact that no documents are produced in answer to some of the impugned paragraphs may be relevant to the issues that arise in the proceedings. The apparent or “adjectival” relevance of the documents that would be produced, or not produced, as the case may be, is adequately explained by Mr Rush’s solicitor, Mr Nicholas Pullen, in his affidavit of 24 September 2018, and in the submissions advanced on behalf of Mr Rush.
In those circumstances, I see no reason to set aside the impugned paragraphs of the subpoena. The interlocutory application is accordingly dismissed with costs.
I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 15 October 2018
- AGLC
- Rush v Nationwide News Pty Limited (No 3) [2018] FCA 1546
- Case
- [2018] FCA 1546
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the documents sought by the subpoena were relevant to the defamation action and, if not, whether the application to set aside those parts should be granted. The court considered the scope of the subpoena, the relevance of the documents sought, and the potential prejudice to the plaintiff if the subpoena were to be enforced.
The court found that the plaintiff had not demonstrated that the documents sought by the subpoena were irrelevant to the defamation action. The court held that there was a reasonable prospect that the documents might materially assist the plaintiff in establishing a defence to the defamation action. The court also found that the potential prejudice to the plaintiff if the subpoena were enforced was not sufficient to warrant setting aside parts of the subpoena. The application to set aside parts of the subpoena was dismissed, and the subpoena was stood over for a later date.
In summary, the court held that the plaintiff had not demonstrated that the documents sought by the subpoena were irrelevant to the defamation action, and the application to set aside parts of the subpoena was dismissed. The subpoena was stood over for a later date, and certain pages of an exhibit were ordered to be treated as confidential and not released to third parties. The Sydney Theatre Company Limited’s interlocutory application was also dismissed with costs.
Orders
Orders of the court
1. Pages 1 – 6 of “Exhibit NP1” to the affidavit of Nicholas Pullen sworn 24 September 2018 be treated as confidential and are not to be released to third parties.
2. The Sydney Theatre Company Limited’s interlocutory application, filed on 12 September 2018, be dismissed with costs.
3. The subpoena to Sydney Theatre Company Limited, dated 3 September 2018 and issued at the request of the applicant, be stood over to 3 October 2018 at 9:30am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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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