Smith's Weekly Publishing Co Ltd v Sunday Times Newspaper Co Ltd

The High Court of Australia heard an appeal from the Supreme Court of New South Wales concerning an application for the inspection of a document in a libel action. The parties were Smith's Weekly Publishing Co Ltd (the defendant) and The Sunday Times Newspaper Co Ltd (the plaintiff). The plaintiff had refused to produce a report by accountants, John Stewart & Co., on the grounds that it solely supported its own case and did not assist or impeach the defendant's case. The defendant sought inspection of this document, alleging the plaintiff had erroneously represented its character.

The legal issues before the High Court were whether the Supreme Court had erred in refusing the defendant's application for inspection of the document, and the proper interpretation and application of sections 102 and 103 of the *Common Law Procedure Act 1899* (NSW) in relation to claims of privilege in affidavits of discovery. Specifically, the court had to consider the standard of proof required to overcome a sworn statement in an affidavit of discovery that a document does not support the opposing party's case.

The Court, comprising Knox C.J., Isaacs and Rich JJ., dismissed the appeal. Knox C.J. found that, on the evidence presented, there was no substantial ground to conclude that the plaintiff's statement in the affidavit of discovery was made erroneously or under a misconception. Isaacs and Rich JJ. provided a detailed analysis of sections 102 and 103 of the *Common Law Procedure Act 1899* (NSW), noting that section 103 is an inspection provision providing a summary method of obtaining inspection akin to equitable discovery, while section 102 grants broader powers. They held that while these sections should be read separately, and section 102 allows for inspection if there is a reasonable probability that a document may aid the applicant's case, the facts in this instance did not meet that standard. The plaintiff's sworn statement, in the absence of countervailing evidence, was not sufficiently challenged.

The appeal was dismissed with costs.