Sarina v O'Shannassy (No.3)
[2020] FCCA 974
•7 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SARINA & ANOR v O’SHANNASSY (No.3) | [2020] FCCA 974 |
| Catchwords: PRACTICE AND PROCEDURE – Application for further discovery – whether leave should be granted for the issue of a subpoena to a third party abridging time for service – application for procedural orders – application for further discovery refused – leave granted to issue subpoena – procedural orders made. |
| Legislation: Defamation Act 2005 (NSW), s.38 |
| Cases cited: Sarina v Fairfax Media Publications Proprietary Limited [2018] FCA 521 Sarina v Fairfax Media Publications Proprietary Limited [2018] FCAFC 190 |
| First Applicant: | CLINTON SARINA |
| Second Applicant: | MARTIN GREEN |
| Respondent: | JOHN O’SHANNASSY |
| File Number: | SYG 1339 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 7 April 2020 |
| Date of Last Submission: | 7 April 2020 |
| Delivered at: | Sydney |
| Delivered on: | 7 April 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr R Rasmussen |
| Solicitors for the Applicants: | Kalantzis Lawyers |
| Counsel for the Respondent: | Mr T Crispin |
| Solicitors for the Respondent: | Lloyd & Lloyd Solicitors |
ORDERS
The respondent have leave to apply for the issue of, and there be issued, a subpoena directed to Fairfax Media Publications Pty Ltd that calls for the production of the following classes of documents filed in or obtained for the purpose of the proceeding commenced by Clinton Sarina against Fairfax Media Publications Pty Ltd in the Federal Court of Australia (NSD1415/2017):
(a)pleadings that had been filed and served;
(b)affidavits that have been filed and served; and
(c)documents that have been obtained for the purpose of establishing any defence pleaded in any defence filed and served,
such subpoena to be made returnable before Judge Manousaridis at 9:30 am on 14 April 2020 at Level 8, Court 8.1, 80 William Street, Sydney, by a representative of Fairfax Media Publications Pty Ltd appearing by telephone before Judge Manousaridis at that time and date.
The time for serving the subpoena issued pursuant to order 1 is abridged to 4:00 pm on 8 April 2020.
The subpoena issued pursuant to order 1 may be served by email to the email address of that representative or representatives of Fairfax Media Publications Pty Ltd who has or have knowledge of the proceeding commenced by Clinton Sarina against Fairfax Media Publications Pty Ltd.
Fairfax Media Publications Pty Ltd has liberty to apply to the Federal Circuit Court of Australia in relation to these orders, such liberty to be exercised by Fairfax Media Publications Pty Ltd sending an email to the associate to Judge Manousaridis ([email protected]).
Subject to order 6, the time for the respondent filing his affidavit or affidavits be extended to 5:00 pm on 8 April 2020, and that the respondent file and serve his affidavit or affidavits by email by that time and date.
The respondent shall not be at liberty to read any affidavit or affidavits which he may file pursuant to order 5 at the hearing of this matter without the leave of the Court.
The application in a case filed on 2 April 2020 is otherwise dismissed.
The costs of and incidental to the application in a case are reserved.
A sealed copy of these orders be served on Fairfax Media Publications Pty Ltd in the same manner and at the same time as the respondent serves on Fairfax Media Publications Pty Ltd the subpoena that shall be issued pursuant to order 1.
There will be sufficient compliance with the subpoena issued pursuant to order 1 if, with the consent of the legal representative of the respondent, Fairfax Media Publications Pty Ltd produces a copy of the documents called for by the subpoena.
Any documents that may be produced pursuant to order 10 will be held by the legal representative of the respondent for the sole purpose of these proceedings.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1339 of 2018
| CLINTON SARINA |
First Applicant
| MARTIN GREEN |
Second Applicant
And
| JOHN O’SHANNASSY |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Before me this afternoon is an application in a case filed by Mr John O’Shannassy, the respondent. By that application in a case, the respondent seeks a number of orders, and these may be classified into four classes. The first relates to the giving of discovery. I have already made orders for discovery, but this application is premised on the need to give further discovery. Order 1 that is sought in relation to discovery is as follows:
That the Applicants provide to the Respondent a list of discoverable documents, consisting of all documents and materials in its possession relating to defamation proceedings brought by either Applicant against Fairfax Media Limited, or any other media organisation, by the close of business one day after the date of this order.
Orders 2 and 3 of the application in a case are ancillary, and assume the granting of an order in terms of paragraph 1 of the application in a case; and these relate to dealing with claims for privilege should they arise in the course of the giving of discovery if an order as sought by the respondent is made.
The second type of relief sought in the application in a case is an order that the Court grant the respondent leave to file and serve a subpoena. The order sought is as follows:
That the Respondents [sic] be granted leave to file a subpoena to Fairfax Media Limited, for production of all documents relating to defamation proceedings brought against them by the First Applicant or the Second Applicant, returnable by the close of business on 7 April 2020.
The third order sought is that the respondent be given further time to file his evidence, and the time that is sought is expressed to be referrable to the date on which any subpoena that may be issued is made returnable. The final order sought is one Mr Crispin, who appears for the respondent, does not press, and that is that the proceeding be struck out for want of prosecution. I will say nothing further about that claim. I should also add that costs are sought as well.
I now turn to the application in relation to discovery. As I have already noted, an order for discovery has been made, and affidavits of documents have been filed purportedly pursuant to those orders. There is no question that the applicant has filed his affidavit of documents late, and considerably late.
The relevance of the documents sought was explained to me by Mr Crispin. He said the documents were relevant for two purposes. One was it was relevant to s.38 of the Defamation Act 2005 (NSW), which deals with questions of mitigation of damages. As I understood Mr Crispin, he said that he understood that the first applicant, Mr Sarina, had commenced defamation proceedings against Fairfax Media in relation to an imputation substantially identical to at least one or more of the imputations which are the subject of the claims that Mr Sarina brings in this Court. Mr Crispin also submitted that the documents sought by the subpoena are relevant to some of the defences already pleaded.
Mr Rasmussen, who appears for the applicants, opposes the application for discovery, and he did so on a number of bases. The principal basis is that the issue on which the respondent seeks discovery is not an issue that arises on the pleadings. Mr Rasmussen submitted that any issue of mitigation of damages must be specifically pleaded, and that has not occurred.
Mr Crispin’s response to that was that, on his instructions, the respondent did not become aware of these proceedings until sometime in March, and in those circumstances, it would be unrealistic to have expected the respondent to have pleaded the mitigation of damages based on that case. Mr Rasmussen submitted that the respondent has not identified the other issues currently pleaded to which the documents are relevant. Mr Rasmussen also submitted, however, that a practical answer to the access of documents may be found in the issuing of a subpoena. Mr Crispin told me that his instructions were that his solicitor had had conversations with a representative of Fairfax Media Limited, who had indicated that they would be willing to produce documents in answer to a subpoena.
The question, therefore, that arises is whether I should make an order for discovery, at least in the form sought in the application in a case. I am not satisfied that discovery should be sought, at least not in those terms. The principal objection that I have to the discovery sought is that discovery is not sought by reference to any current issue. What is being sought is, as the quote above shows, is, in effect, all documents and materials in relation to a particular defamation proceeding. That, to me, is insufficient. It is well known that discovery is a process by which the person obliged to give discovery is to assess documents that must be disclosed by reference to an issue in the pleadings.
Of course, it might in certain circumstances be appropriate to ask for documents by way of subpoena in that way, although even where documents are to be asked in that way, there might yet still be an issue as to whether the seeking of documents described in that way is a fishing expedition. So I propose to dismiss the application in a case so far as it seeks an order in terms of paragraph 1. Given the ancillary nature of orders 2 and 3 which are sought, the application in a case will be dismissed to the extent it seeks those orders.
The next question I consider is whether leave should be granted to the respondent to issue a subpoena. The documents, as described in the application in a case, that will be sought to be obtained via a subpoena are described in very broad terms. However, in the course of argument, Mr Crispin was able to limit the documents that would be the subject of a subpoena if I were minded to grant the respondent leave to file one. First of all, it was limited in terms of the defamation proceeding to which the application in a case refers. I was taken to page 15 of the annexures to the affidavit of Mr See, which refers to two reported judgments. One is Sarina v Fairfax Media Publications Proprietary Limited [2018] FCA 521 and the other is Sarina v Fairfax Media Publications Proprietary Limited [2018] FCAFC 190. I, of course, have not looked at those cases. However, while I adjourned the matter briefly to consider my decision and formulate the orders I would make, I asked my associate to access those judgments at least for the purposes of obtaining the file number, and the file number in the Federal Court in NSD675/2018.[1]
[1] This is incorrect. The correct file number is NSD1415/2017, and is included in the orders that were entered and which are set out in the cover sheet of these reasons for judgment.
The second way in which Mr Crispin limited the documents that would be called for by a subpoena if I were to grant the respondent leave to issue one, was by describing the documents that are to be produced; and these are, as I understood it, pleadings that have been filed and served, affidavits that have been filed and served, and documents that have been obtained for the purpose of establishing defences pleaded in any defence the respondent in the Federal Court proceeding has filed.
Mr Rasmussen submitted that he was not in a position to object to my granting the respondent leave to issue a subpoena. I do not take that as consent from him. However, given the compulsory nature of a subpoena, I need to be satisfied that it is appropriate that I grant leave and that, in the circumstances of this case, the time for compliance with that subpoena be abridged. The need for that is that the matter is set down for hearing to commence on 15 April, which is one week away, with Easter intervening.
There are therefore two issues I need to consider. One is whether there is at least some basis for believing there is a legitimate forensic purpose to the issuing of a subpoena calling for the documents as described by Mr Crispin; and the second is, of course, the impact of issuing a subpoena to Fairfax Media, which will require production within an abridged time.
I first turn to the second consideration. As I noted earlier, Mr Crispin said that his instructions are that his solicitor has been in contact with a representative of Fairfax Media Publications, and that representative indicated that Fairfax Media Publications had documents and it would comply with a subpoena to produce them. That by itself would not satisfy me that Fairfax’s interests would be protected. They could be protected, however, by my making an order, if I were to make an order granting leave for the issue of subpoena, to permit Fairfax to apply in a manner most convenient to it to have the subpoena set aside, or to make some other order in relation to a subpoena that may be issued if I were to grant leave.
As to the legitimate forensic purpose, I am not in a position to be satisfied that there is a legitimate forensic purpose. That, however, should not affect my ability to grant leave to issue a subpoena, because my saying I am not satisfied is a statement of my ignorance of the current state of the pleadings, and the potential relevance these documents may have. Also, there are competing but unsubstantiated assertions, about when certain matters came to the attention of the respondent, and, in particular, when the existence of Federal Court proceedings came to his attention and to his lawyers’ attention. In those circumstances, I cannot be satisfied that the issuing of a subpoena would be an abuse of process. In any event, the order, if I were to give it, will go no more than the granting of leave to file the subpoena and serve it, and abridging time. If there is any issue in relation to abuse or relevance, these may be taken up by Fairfax itself, or indeed by the applicants who, although are not the persons to whom the subpoena will be addressed, nevertheless have a legitimate interest to make submissions about the propriety of the subpoena that is in issue if I were to grant an order that the subpoena be issued.
I will make orders granting the respondent leave to apply for the issue of a subpoena directed to Fairfax Media Publications. I propose to make an order that the time for serving the subpoena be abridged to the close of business on 8 April 2020, and I also make an order that the subpoena may be served by email to the representative or representatives with whom the respondent’s instructing solicitor has been holding communications in relation to the production of the documents. I will reserve to Fairfax liberty to apply on short notice, such liberty to be exercised by email to my associate’s email address. So I will make orders in relation to that in a moment.
Next, there is the application to extend the time for filing of evidence. Mr Rasmussen objects on the ground that the respondent has had more than enough time to do it. Mr Rasmussen paid particular emphasis on the nature of the defences that have been pleaded. These are matters on which Mr Rasmussen submitted the respondent bears the onus, and the applicants will be prejudiced if they are not provided with the – what is, in effect, evidence-in-chief of the respondent’s defence in time for them to properly deal with it.
Those objections, on their face, have merit, although Mr Crispin has countered by referring to the lateness by which the applicants have completed their discovery. I do not propose to enter into this debate presently. It may be premature and it may go away. The solution I have is to grant the respondent until close of business tomorrow to file and serve affidavits on which he is in a position to file and serve, but I will make an order that he will not be permitted to read such affidavits at the hearing without my prior leave. The idea behind that is that by that stage, the applicants will have at least been aware of the evidence that has been filed and will have had an opportunity to determine whether, exercising reasonable diligence, they can provide affidavit material in the time available. So what I propose to do is to make an order extending time, but subject to an order that my prior leave be granted before it can be read.[2]
[2] It should be noted that the orders set out in the cover sheet to these reasons include amendments and additions to the orders I pronounced after I delivered my reasons for judgment. I amended the orders in chambers with the consent of the parties.
That then leaves the question of costs. Mr Rasmussen seeks costs. Because quite a few assertions have been made about the background to this application not being supported by affidavit material, I think it would be unwise for me to make an order for costs without having such material before me, the appropriate order therefore would be that the costs of the application in a case today be reserved, and I will make an order to that effect.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 30 April 2020
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