Smith v Jones (pseudonyms)

[2017] NSWSC 980

Supreme Court

New South Wales

Medium Neutral Citation:	Smith v Jones (pseudonyms) [2017] NSWSC 980
Hearing dates:	16 June 2017
Decision date:	20 June 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Subpoena to Bravehearts Foundation set aside; plaintiff to pay Bravehearts Foundation’s costs of the application.
Catchwords:	PRACTICE AND PROCEDURE – subpoenas – application to have subpoena set aside – proceedings for defamation raising an issue of fact as to whether the plaintiff sexually assaulted his son – subpoena issued by the plaintiff to a welfare organisation that had studied the experience of victims of sexual assault with the Family Law system – plaintiff seeking to obtain documents relating to that organisation’s consideration of the son’s story – public interest in protecting confidential information in the case of organisations which rely upon confidentiality for their very existence
Legislation Cited:	Evidence Act 1995 (NSW), s 126B Uniform Civil Procedure Rules 2005 (NSW), r 33.4(1)
Cases Cited:	Crawford v Sisinis [2014] FamCA 912 Goldy v Goldy (No 2) [2011] FamCA 418 Patonga Beach Holdings Pty Limited v Lyons [2009] NSWSC 869
Category:	Procedural and other rulings
Parties:	xx
Representation:	Counsel: C Dibb (plaintiff) S Chrysanthou (defendants) E Muston SC, J Granger (for Bravehearts Foundation - applicant)   Solicitors: Capital Lawyers (plaintiff) Kalantzis Lawyers (defendants) Clayton Utz (applicant)
File Number(s):	2016/85803
Publication restriction:	The parties are referred to by pseudonyms in this judgment. No non-publication order has been made in these proceedings. However, pseudonyms are necessary having regard to the prohibition contained in s 121(1) of the Family Law Act 1975 (Cth).

Judgment (PUBLISHED ORALLY – REVISED)

1. HER HONOUR: This is an action for defamation. The plaintiff is the father of a male child. He is separated (I think probably divorced) from the child's mother. There are or have been proceedings in the Family Court between the father and the mother in which it has been alleged by the mother that the father sexually assaulted the child during the period of their relationship.

2. After the marriage failed, the mother entered into a relationship with another man, who is the defendant in these proceedings. He stood in the role of stepfather to the child for at least some period of time. These proceedings arise from statements made publicly by the defendant accusing the plaintiff of having committed sexual assaults against the child. The statements were reported in a newspaper, the proprietor of which was the second defendant to the proceedings. The case as against the newspaper has settled; the only remaining proceeding is the case against the stepfather.

3. The proceedings came before the Court last Friday to determine an application by a third party to have a subpoena set aside. The subpoena was issued to an entity named Bravehearts Foundation Limited. The activities of that organisation will be addressed later in this judgment.

4. The subpoena sought:

All documents (whether stored electronically or not) concerning or relating to the child, the plaintiff or the mother, including but not limited to all notes, memoranda, witness statements, statutory declarations, medical records, medical reports, publications, articles, stories and correspondence.

5. Bravehearts’ notice of motion seeks to have the subpoena set aside pursuant to rule 33.4(1) of the Uniform Civil Procedure Rules 2005 (NSW). The application was brought on three grounds, namely:

1. relevance;

2. the allegedly inadequate particularity of the documents sought; and

3. a claim in the nature of public interest immunity in respect of the documents sought.

Relevance

6. In order to determine the relevance of the documents sought, it is necessary to identify the issues in the proceedings. The plaintiff alleges that the material published by the defendant conveyed imputations that the plaintiff is a very sinister and effective paedophile and that the plaintiff took advantage of court orders to continue to sexually abuse his terrified child. The plaintiff also seeks to hold the defendant liable as a publisher of the newspaper article in respect of which the following imputations are specified: that the plaintiff is a paedophile; that the plaintiff abused the first defendant's child; and that the plaintiff is a child rapist.

7. To those imputations, the defendant has pleaded the defence of truth under s 25 of the Defamation Act 2005 (NSW). Accordingly, an issue in the proceedings will be whether the sexual assaults occurred. As presently instructed, counsel for the defendant proposes to call the child as a witness. The defendant has also pleaded the defence of qualified privilege both under s 30 of the Act and at common law. One of the elements of the statutory qualified privilege defence is the reasonableness of the defendant's conduct in publishing the matter complained of. Particulars provided in support of that element of the defence include reference to the defendant’s having been aware, at the time of publication, of "the case study of the child's abuse contained in the paper by the Bravehearts Foundation Limited entitled 'Abbey's Project' wherein the child was referred to as John in case study one”.

8. It is that reference to Abbey's Project which appears to have prompted the issue of the subpoena. The nature of Abbey's Project is explained in an affidavit sworn in support of the application by Ms Hetty Johnson. Ms Johnson states that Bravehearts commenced Abbey's Project in 2015. It “involved gathering the stories of a number of children who alleged they were the victims of child sexual assault, and their families, [studying] how they felt that the family law system had let them down”. They included the story of "Abbey", who committed suicide after being allowed by the Court to spend time with her father, a convicted child sex offender.

9. Ms Johnson states that Bravehearts received a large number of submissions from parents who wanted to share their stories, presumably about their experience with similar difficulties. Extensive work processing those submissions and other information obtained to substantiate allegations contained in the submissions culminated in Bravehearts preparing an independent report seeking to tell the stories of some parents and children. Ms Johnson states:

Bravehearts has received, from the participants of Abbey's Project, private and confidential personal information of children and protective parents, given to us exclusively and on the understanding that we would not divulge it without prior written consent, regarding serious allegations of sexual assault and organisational dysfunction.

10. Ms Johnson further states that, through her experience with Bravehearts, she has come to understand that it is difficult for people to speak out on the subject of child sexual assault and that trust is the most critical element of Bravehearts' relationship with victims and their families who have approached Bravehearts. She states, "In my view, without preserving this trust, we have nothing of any real value to offer".

11. Prima facie, based on the pleadings to which I have referred, the documents sought have no relevance to any issue in the proceedings. As already noted, the only reference in the pleadings to Abbey's Project is as a particular of material known to the defendant at the time of publication, which is relied upon as an aspect of the contention (in support of the qualified privilege defence) that his conduct was reasonable in the circumstances. The reference is to the report itself, not any of the underlying material sought by this very broad subpoena.

12. Mr Dibb, who appears for the plaintiff, identified two issues to which he submitted the documents sought from Bravehearts might potentially be relevant. One was the issue of aggravation of damages. It is not clear how any documents sought might be relevant to that issue, since the only relevant defendant is the stepfather of the child, whereas the documents sought relate to the plaintiff, the child and the mother. Even if a case could be mounted to the effect that there was a repetition of the defamatory allegations sued on in these proceedings in communications with Bravehearts, the subpoena is not framed so as to obtain access to any repetition of those allegations by the defendant. For that reason, the submission does not make sense; in any event, the premise of the submission is not pleaded.

13. The second issue identified by Mr Dibb was the prospect of obtaining, from within the material sought on subpoena, prior inconsistent statements by the child. It was acknowledged that the submission was not based on any specific identifiable inconsistency between the content of Abbey's report and any other out of court statement made by the child. The prospect of any inconsistency with any statement the child might make in evidence in these proceedings cannot be known. In that respect, the submission was largely speculative. I am prepared to proceed on the assumption that it is conceivable that some of the documents sought might be relevant to the issue of the child's credit as a witness although that, too, is speculative.

Particularity

14. I turn then to the second basis for the challenge, which is the alleged lack of particularity in the documents sought. Mr Muston SC, who argued the application on behalf of Bravehearts, drew my attention to the judgment of Barrett J in Patonga Beach Holdings Pty Limited v Lyons [2009] NSWSC 869 where his Honour said at [13] to [14]:

13   The requirement under rule 33 is that a subpoena to produce documents “identify” the document to be produced (see rule 33.3(4)(a)), that is, cut the document out from the universe of documents by some description or specification.

14   It is permissible for a subpoena to call for, for example, all documents recording oral communications between A and B within a stated period and referring to a particular company: see Lane v Registrar of the Supreme Court [1981] HCA 35; (1981) 148 CLR 245. Such a subpoena satisfies the requirement that there be “specified with reasonable particularity the documents that are required to be produced”. These are the words of Jordan CJ in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573. What is impermissible, again using the words of Jordan CJ, is that a person be required to search for or produce all such documents as he or she may have in his or her possession or power relating to a particular subject matter. Jordan CJ continued:

“It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents”.

15. Mr Muston submitted, in my view correctly, that the schedule to the existing subpoena fails to meet that requirement. It does not carve out from the universe of documents likely to be held by Bravehearts any particular documents. It would, it seems to me, be necessary for someone, in order to comply with the subpoena, to trawl through a very large number of documents to see whether there was any reference or relation to any of the three named persons.

16. Mr Dibb tendered correspondence which he submitted showed that the plaintiff had, in effect, invited Bravehearts to identify some narrower scope of documents that might conveniently be sought. With great respect to Mr Dibb, that approach misconceives the proper approach. It is not for a third party facing an oppressive or overly broad subpoena to redraft it for the party at whose request the subpoena was issued.

17. In any event, I do not read the correspondence as suggesting any helpful narrowing of the scope of the subpoena. The real issue was better articulated by Mr Dibb in argument when he said what the plaintiff seeks is the communications between Bravehearts and the family (the child, the defendant and his wife). That is certainly not the way in which the subpoena is presently framed. As already noted, the subpoena makes no reference to the defendant. But, in any event, against the prospect that a more carefully refined subpoena might be issued, it is convenient to consider the third basis on which the subpoena is objected to.

Public interest immunity

18. Mr Muston relied on s 126B of the Evidence Act 1995 (NSW) which provides for the exclusion of evidence where adducing the evidence would disclose a protected confidence or the content of a document recording a protected confidence or protected identity information. Although that section is directed to adducing evidence at a hearing, it was common ground that it guides the scope of permissible compulsory production of documents at the interlocutory stage. Both parties relied on decisions of the Family Court which have considered the appropriateness of allowing a party to subpoena documents of the kind sought in the present case, where it might reasonably be anticipated that the documents record a complaint of sexual assault against a child.

19. The first was the decision of Dawe J in Goldy v Goldy (No 2) [2011] FamCA 418 where leave was refused to a father to issue a subpoena to Kids' Helpline. His Honour said at [2]:

The Court needs to consider carefully both the usefulness of any information that might be obtained from Kids Helpline and the question of the public interest immunity. There is no specific legislation (Federal or State) which would deal with these particular circumstances, but the common law is significant in that the Court should be very wary about issuing subpoenas to an organisation which relies upon its confidentiality for its very existence. The benefit of the services provided by Kids Helpline to the children and young people who use that service is significant.

20. Mr Dibb noted that was a different case for a number of reasons, not least among which is that it was clear that the prospect that the subpoenaed material might record conversations between the child in that case and counsellors employed at Kids' Helpline was speculative. However, in my view, the case provides a useful statement of principle to guide the Court in determining the proper scope of subpoenas seeking disclosure of what could plainly be regarded as confidential information in the case of organisations which rely upon confidentiality for their very existence.

21. Separately, both parties referred to the decision of the Family Court in Crawford v Sisinis [2014] FamCA 912. The Court in that case cited with approval the passage in Goldy v Goldy to which I have just referred. The decision also noted the undoubtedly correct proposition that a claim of public interest immunity is for the benefit of the public and cannot be waived by the parties.

22. The affidavit of Ms Johnson to which I have already referred establishes a firm basis for concluding that Bravehearts is an organisation which relies upon confidentiality for its very existence. Mr Dibb drew my attention to a series of indications that the identity of the child in the present case has been disclosed in a number of forums, including in the matter complained of itself, where the defendant (who is named) openly identifies the child as a child related to him and openly refers to the allegations of sexual assault. However, as already stated, it is not for the parties to waive that kind of confidentiality which, in any event, is based on broader interests including the interest of Bravehearts in preserving the very vital trust reposed in it by the kind of people most likely to benefit from its work.

23. For those reasons, I am satisfied that a basis for setting the subpoena aside is made out. The relevance of the documents sought is tenuous. Whilst the conclusion in respect of the second ground pertaining to particularity might, in some circumstances, warrant allowing a more closely refined subpoena, the effect of my conclusion on the third ground, the public interest issue, is that there should be no further subpoena issued to Bravehearts in the present case.

24. For those reasons, I make order 1 sought in the notice of motion. I order the plaintiff to pay Bravehearts Foundation's costs of the application. I stand the matter over to 1 September 2017.

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Decision last updated: 04 August 2017