McLachlan v Whelan Browne

1. [1]

   HIS HONOUR: The plaintiff sues for defamation, for the purpose of which he has served each of a number of persons with a subpoena to produce documents and/or records. The subpoena for production is, at least in part, sought to be set aside by the recipient of the subpoena and/or by the defendants in the proceedings.

2. [2]

   At the time that the matter came before the Court, for determination of the Motions by the defendant and the recipients of subpoenas, the matter was listed urgently. At the time it had been set down for hearing commencing 4 February 2019 for a period of four weeks. In the meantime, because of the existence of other proceedings, the substantive proceedings have been stayed and the hearing which was to have commenced on 4 February 2019 has been vacated.

3. [3]

   Nevertheless, at the time the Motions were listed before the Court, the matter was urgent and orders issued ex tempore on 21 September 2018. At the time, the Court indicated to the parties that it reserved reasons for judgment. The parties indicated that they did not require reasons, but the Court considers that it is under a duty to issue its reasons, not otherwise disclosed in the course of the discussions with counsel. As a consequence of the attitude of the parties (including any third-party applicant), these reasons are necessarily in short form.

Background

1. [4]

   First, it should be made clear that there are two sets of proceedings, one in which the plaintiff sues Ms Whelan Browne and Fairfax Media Publications Pty Ltd (hereinafter “Fairfax”) and a second set of proceedings in which the plaintiff sues the Australian Broadcasting Corporation (hereinafter “ABC”). Relevantly, the Statement of Claim and Defences in each are either identical or not different in any way that is relevant to the current issues.

2. [5]

   As a consequence, the subpoenas are dealt with only in relation to the Fairfax matter, but the orders in relation to the Fairfax subpoenas will be and were the same as those in the ABC matter.

3. [6]

   Secondly, it is necessary to point out that the substantive proceedings are proceedings brought by the plaintiff for damages in defamation arising from a publication and/or broadcast in which imputations arise relating to allegations that the plaintiff is guilty of indecently assaulting and/or sexually harassing certain persons and of indecently exposing himself to and bullying certain female cast members in a production of the Rocky Horror Show.

4. [7]

   The Defence raises the issue of justification and contextual truth. The particulars of the truth, being the direct justification of the imputations and the contextual imputations, run to approximately 124 paragraphs, but, relevantly, include allegations concerning five of the subpoenaed parties. The identity of the parties is, unless otherwise necessary, not a matter particularly relevant to these reasons for judgment. One of the parties to whom a subpoena has been directed is a person whose name and anything that might identify the person has been suppressed by order of the Court, issued in earlier proceedings.

5. [8]

   As may be obvious from the identity of the defendants, the complaint is made in respect to a publication in the Sydney Morning Herald (and to the anterior interview that led to the article) and a broadcast on the ABC, being a report on the 7:30 Report.

6. [9]

   Apart from the persons who are “complainants” as to the allegations of misconduct, subpoenas have been issued to the journalists, as part of the alleged investigation of the incidents and to the Media Entertainment and Arts Alliance, the union that includes Actors Equity and deals with the internal regulation of the journalism standards and ethical issues involving acting.

7. [10]

   As earlier stated, the subpoena to each of the recipients is, at least in part, in or to the same effect. The objection taken to the subpoena is, with one exception, identical.

8. [11]

   The first objection is that the subpoena, in part, is tantamount to discovery, because they call upon the recipient to make a judgement about what is caught by the subpoena. Further, objection is taken as to the period during which information is sought; and, lastly, the exception to which earlier reference has been made, objects to the subpoena on the basis of oppression.

Principles

1. [12]

   The principles are uncontroversial and there is no substantive disagreement between the parties as to the principles to be applied. Nevertheless, there is some disagreement as to the application of those principles.

2. [13]

   In relation to objections such as those raised by the recipient and/or objecting parties, there is no distinction in the principles to be applied between defamation proceedings and any other civil proceeding. The Uniform Civil Procedure Rules 2005 (NSW) (hereinafter “UCPR”) gives the Court power to set aside a subpoena on the application of a party or the recipient of the subpoena.

3. [14]

   Essentially, a party seeking the production of documents must identify a legitimate forensic purpose for which the document is sought and establish that the documents that are sort will materially assist the case, or, more accurately, that, on their face, it is probable that the documents will materially assist the case. This latter aspect has been described in a number of ways.

4. [15]

   The principles of “adjectival relevance” or whether the assistance that would be provided by any such document is “on the cards” was discussed by the Court, as presently constituted, in Lindsay-Owen v HWL Ebsworth Lawyers [2017] NSWSC 1692. I excerpt the relevant discussion, which is largely a reference to the judgment of Ward J (as her Honour then was) in the matter of One.Tel Ltd (in liq) - SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 and the judgment of Brereton J (as his Honour then was) in Portal Software v Bodsworth [2005] NSWSC 1115. I reiterate those comments at [24] – [26], which were in the following terms:

5. [16]

   The objections to the subpoenas point to the use of the term “evidencing” and the submission is that the term involves the application of a judgement as to what may or may not evidence particular conduct. Further, the objections refer to the use of the term “assaulted” or “sexually harassed” as also requiring an assessment or conclusion as to that which amounts to assault or sexual harassment.

6. [17]

   Otherwise, the objection refers to a lack of clarity in that which has been asked or disputes its adjectival relevance.

Consideration

1. [18]

   The term “evidence” or “evidencing”, when used as a verb or participle may have two distinct meanings. The first of them is that which is codified in the Evidence Act 1995 (NSW) and refers to any document, or the content thereof, that renders a fact, directly or indirectly, more probable than it would otherwise be.

2. [19]

   The second use, which is the less technical meaning of the term, is to “attest to something” or to “be evidence of something”, in and of itself. The second meaning, to which reference has just been made, is a narrower term than “referring to”.

3. [20]

   The terms of the subpoena to which objection is taken use the composite term “referring to and/or evidencing”. To the extent that the technical meaning of the term “evidencing” is being used, in my view it calls for a value judgement and possibly knowledge of other factors of which the recipient of the subpoena would be unaware. Nevertheless, the second meaning of the word evidencing is perfectly proper and is not “fishing”.

4. [21]

   However, since the second meaning of the term is a narrower description than the term “referring to”, it is sufficient to delete the words “and/or evidencing” and allow the subpoena to go forward seeking documents “referring to any allegation”.

5. [22]

   As for the terms “assaulted” and “sexually harassed”, the defendants submit that these have a legal meaning. It is true that each term may have a legal meaning, but the terms of the subpoena are to be taken in terms of their ordinary English usage. Each of the term “assaulted” and “sexually harassed” has an ordinary English meaning, which is, and can be, properly the matter of a description of a document by reference.

6. [23]

   If, ultimately, the plaintiff, who has issued the subpoena, takes a broader view of the terms, it is not a matter upon which the recipient of the subpoena can be criticised, as long as the recipient of the subpoena takes a reasonable and ordinary view of the terms used.

7. [24]

   As to the objection on the basis of oppression, I do not accept that any of the subpoenas are, on their face, oppressive. Notwithstanding that view, it seems to me that some of the dates that define the periods for which documents are to be produced, define a period that is not, at its extreme, adjectivally relevant.

Conclusion

1. [25]

   As a consequence of the two foregoing conclusions, I deleted the words “and or evidencing” from paragraph 1 of the subpoena and confine paragraph 3 to telephone records, being metadata, between 1 October 2017 and 1 February 2018 and not records to date.

2. [26]

   In the course of the discussion as to the meaning of the term “telephone records”, the plaintiff clarified that he was seeking what has been commonly called metadata, namely, records of the date, duration and time of any such telephone communication, as well as the number from which and to which the communication was made. The reference to “communication” includes data transmission or text message.

3. [27]

   For reasons adumbrated during the discussion with the parties, I otherwise allowed the subpoenas. In case there are differences in the precise paragraph numbering of the subpoenas, the reference to the paragraph numbers in the foregoing reasons is a reference to the subpoena at Tab 1 of Exhibit MO-3.

4. [28]

   The foregoing are the reasons, shortly stated, that the Court made the orders, ex tempore, on 21 September 2018.