Marsden v Amalgamated Television Services Pty Limited

HIS HONOUR: On 21 February 2000 the plaintiff served a Notice to Produce on the defendant. A copy, which was provided to me for the purposes of this application, I have marked as exhibit D.

By Notice of Motion filed in court today the defendant seeks relief in relation to that Notice to Produce.

The Notice of Motion is supported by an affidavit of Mr Bates sworn 24 February 2000. There are three exhibits, made up of three envelopes (exhibits A, B and C on the Motion), in respect of which specific orders are sought in the Motion as amplified in Mr Bates' affidavit.

The catalyst for the delivery of the Notice to Produce appears to have been the tender by the defendant during the course of Mr Elomari's evidence of exhibit 42 at T4162, being the agreement between that witness and the defendant.

It is submitted for the defendant that paragraph 1 of the Notice to Produce on its face discloses the plaintiff to be seeking to embark upon what, in reality, is a fishing expedition in relation to the twenty-two persons named in the Notice to Produce, save for Mr Elomari.

As to paragraphs 2 to 9, whilst directed to Mr Elomari and leaving to one side any issue of privilege or confidentiality, it cannot be said that anything there sought is reasonably necessary to enable a proper understanding of the documents constituting exhibit 42 as provided for by section 126 of the Evidence Act 1995.

For the plaintiff it is submitted that the privilege did not attach to such documents as are referred to in paragraph 3 (c), (d), (j), (k) and (m) of Mr Bates' affidavit.

I have considered the material and am satisfied upon my inspection of it that the grounds referred to in paragraph 4 (a) and (b) in Mr Bates' affidavit have been made out and that otherwise the bases for non access referred to in paragraphs 5 to 8 of that affidavit have also been established.

In relation to exhibit 42, assertions of a general and contentious nature have been made as to the agreement being a " bribe " as opposed to one made for the purposes set out in the documents themselves making up exhibit 42. Such assertions can be characterised as begging the section 126 question or acknowledging that the documents do not need any other documents as reasonably necessary for their proper understanding.

I respectfully adopt the approach to the construction of section 126 of the Evidence Act by Sackville J in Towney v the Minister (1997) 76 FCR 401 at 412-414.

I add that if a document is reasonably necessary to enable a proper understanding of the subject document, it can be described as a " source document", at least for the reason that it is a source of proper understanding. Otherwise the use of the expression " source document " should be restricted to a phrase of convenience.

A document, either in whole or in part, might be one reasonably necessary for the proper understanding of the relevant communication or document. That is the critical relationship that must be established. There is, however, as to the documents making up exhibit 42, nothing that compels anything else as reasonably necessary to enable a proper understanding of those documents in exhibit 42.

As to the submissions in relation to the evidence of Mr David Maynard and Mr Russell, the ambit of the evidence identifies the " fish " and the notice to produce in its present form far exceeds in width what is necessary for the exposure of any documents in relation to that identified " fish ", as circumscribed by the evidence as it presently exists.

In relation to Mr Pearce, the short answer, of course, is that there is no evidence.

As to all the persons in the list of twenty-two save for Mr Elomari, as I have referred to him, Mr David Maynard and Mr Russell, the Notice to Produce on its face is, on any view, fishing and excessive in breadth, and I set it aside in whole.