//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] NSWSC 185
Supreme Court of NSW
2011-03-18
Schmidt J, Rothman J, Kirby J
Original judgment source is linked above.
Judgment 1These proceedings are pursued by an amended statement of claim filed by the plaintiff on 14 December 2010, where it is claimed that as a result of certain defamatory statements the plaintiff has suffered serious loss and damage, including loss and destruction of national and international reputation; hurt, humiliation and embarrassment; destruction of earning capacity; loss of employment and withdrawal of research projects. The seventh defendant, a US citizen resident in America, was served as the result of orders for substituted service made by Rothman J in September 2010. 2It is alleged that the seventh defendant was a private investigator engaged by the first defendant, the University of New South Wales, who published various defamatory statements about the plaintiff, a former employee of the University, in America and Israel. Other claims in relation to a number of other allegedly defamatory statements are advanced against the other defendants. In a judgment given on 3 March 2011, Kirby J dealt with objections brought by the other defendants in relation to a number of the imputations in the amended statement of claim filed in July 2010 (see Barach v The University of New South Wales [2011] NSWSC 99). 3In October 2010 the seventh defendant filed a motion challenging the Court's jurisdiction and seeking a permanent stay of the proceedings on forum non conveniens and other grounds pursuant to r 12.11(b), (g) and (h) of the of the Uniform Civil Procedure Rules 2005. The hearing of that motion, listed in December 2010, was delayed as the result of the seventh defendant's failure to put on evidence in accordance with a timetable imposed by Nicholas J. It is now listed for hearing on 31 March 2011. The plaintiff confirmed that at the hearing he intended to seek the Court's leave to proceed against the seventh defendant. 4Affidavits in support of the seventh defendant's motion have been filed, as has an outline of submissions. The matter came into the list on Friday, 18 March 2011 for hearing of a question in relation to a notice to produce served by the plaintiff under r 21.10. In a motion filed in Court that day without objection, the plaintiff sought orders requiring production of certain documents. The rule provides: " 21.10 Notice to produce for inspection by parties (cf SCR Part 23, rule 2 (1); DCR Part 22, rule 2 (1), (1A) and (2)) (1) Party A may, by notice served on party B, require party B to produce for inspection by party A: (a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and (b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue. (2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced." 5What was required was production of a book and some emails referred to in two of the affidavits filed by the seventh defendant. The book was authored by Mr Harry Melkonian, a solicitor from whom the seventh defendant seeks to call evidence in relation to American defamation law and the problems confronting the plaintiff in enforcing any judgment given in his favour in these proceedings in any American court. 6At the hearing it became apparent that the practical difficulty with the production of that book has been overcome. It has been published and there is a copy now available to the plaintiff, even though the seventh defendant still formally resists any order for its production. 7The same result has not been achieved in relation to the emails referred to in an affidavit sworn by the seventh defendant on 14 January 2011, where he deposed: "I have never spoken with Ruth Kamar. I deny I published to her the words in paragraph 82 of the Statement of claim or words to that effect. I did send her some emails. When I sent those emails I was in the United States in the state of California. She was in Israel." 8The seventh defendant refused to give the production sought, asserting that until his motion was determined, he had no obligation to give such production. The seventh defendant filed no motion himself seeking from the Court an order relieving him of the obligation to produce the documents, despite the terms of r 21.11, which provides: " 21.11 Production under notice to produce (cf SCR Part 23, rule 2 (3) and (4); DCR Part 22, rule 2 (3) and (4)) (1) Unless the court orders otherwise, party B must, within a reasonable time after being served with a notice to produce: (a) produce for party A's inspection such of the documents or things referred to in the notice (other than privileged documents) as are in party B's possession, and (b) serve on party A, in respect of any document that is not produced, a notice stating: (i) that the document is a privileged document, or (ii) that the document is, to the best of party B's knowledge, information and belief, in the possession of a person identified in the notice, or (iii) that party B has no knowledge, information or belief as to the existence or whereabouts of the document. (2) For the purposes of subrule (1): (a) unless party B establishes to the contrary, 14 days or longer after service of the notice is to be taken to be a reasonable time, and (b) unless party A establishes to the contrary, less than 14 days after service of the notice is to be taken to be less than a reasonable time." 9It was explained at the hearing that this approach resulted from a concern that the filing of such a motion would be relied on by the plaintiff as a submission to the Court's jurisdiction. It was not until during the course of the hearing on 18 March, that the seventh defendant sought leave to proceed on a motion filed in court, in which orders were sought that the plaintiff's notices to produce be set aside. No affidavit was served to support the motion. The seventh defendant relied on the notices to produce themselves and the arguments already advanced on the motion brought by the plaintiff and the evidence led in relation to that motion. He accepted that at that stage, even were he to indicate that he would not seek to read that part of his affidavit which referred to his emails, that would not resolve the dispute which had arisen as to their production. 10The leave sought was opposed by the plaintiff, who complained of prejudice of a kind which could not be addressed by an appropriately fashioned order as to costs, given the seventh defendant's claimed financial circumstances; his resistance to the Court exercising jurisdiction, which the plaintiff claims exists; and difficulties on which the seventh defendant relied in relation to the enforcement of any costs order made in the plaintiff's favour. 11The seventh defendant's course was the result of an acceptance of the force of the judgment given by Giles CJ Comm D in News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250, in relation to the effect of Part 36 r 16 of the Supreme Court Rules 1970; the predecessor to the Uniform Civil Procedure Rules . There, his Honour held that Part 36 r 16 empowered service of a notice to produce where one of the parties was a foreigner who had not submitted to the Court's jurisdiction and had on foot an unresolved contest over jurisdiction. His Honour took the view that the exercise of the power was controlled by the provision in r 16 empowering it to 'otherwise order'. 12That approach accorded with that earlier taken by Rolfe J in Cigna Insurance Australia Ltd and Ors v CSR Ltd and Ors (Supreme Court of New South Wales,10 November 1995, unreported), where CSR Ltd was seeking the dismissal or permanent stay of the proceedings, or alternatively an adjournment pending determination of proceedings on foot in the United States. It, too, had taken care not to take any step in the proceedings which might undermine its stance that it was not amenable to the Court's jurisdiction. It had, however, sought the production of certain documents under Part 36, r 16, as a party to the proceedings as then defined in the Supreme Court Act 1970. The documents were sought in order to assist the case it wished to advance against the exercise of jurisdiction. Rolfe J concluded that it had that right under the Rules. 13The Federal Court has taken a different approach in Armacel Pty Ltd v Smurfit Stone Container Corporation [2007] FCA 1928; (2007) 164 FCR 123, where the Court's jurisdiction was also in contest. There, although Jacobsen J referred to the approach taken by Giles CJ Comm D in News Corporation Ltd v Lenfest Communications Inc , observing that 'the principle stated by his Honour is one that I ought to follow (at [9]), he concluded that: "10 The effect of so doing is that I do not consider that at this stage of the proceedings in which the jurisdiction is under challenge, the applicant can invoke the compulsory processes of the Court. The rules of the Federal Court provide that a notice to produce has the force and effect of a subpoena. Accordingly, the issue of a notice to produce must be considered as an attempt to invoke the Court's compulsory processes in the way discussed by Giles J in the News. 11 Mr Wood, who appears for the applicant, submitted that the decision of Giles J is distinguishable. He drew attention to what appears at 259 to 260 where his Honour observed that he did not think that Pt 36 rule 16 of the Supreme Court Rules should be read down and that it empowers the service of a notice to produce on a foreign party. However, I do not consider those observations of Giles J bear upon the issue before me this morning." 14The result was that the production of the documents there sought, was stayed until further order. A similar order resulted in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2009] FCA 1197, where jurisdiction also was in issue, as well as an application for stay of the proceedings. It was accepted by Logan J that a notice to produce could be issued in relation to interlocutory proceedings, but it was observed at [10]: "There is, it must be said, something of an incongruity in respect of a party who, on the one hand, challenges the jurisdiction of this Court to entertain the substantive proceeding and, on the other hand, seeks to invoke its compulsory process to support an application that that party is making. It may well be that, again prima facie, that course is impermissible: see Armacel Pty Ltd v Smurfit Stone Container Corporation (2007) 164 FCR 123 at [10]." 15In this case it is the seventh defendant who seeks to challenge the Court's jurisdiction and also seeks a stay on certain other grounds, including forum non conveniens. That application is supported by affidavits in which reference is made to certain documents. It is the plaintiff who seeks access to those documents by way of preparation for the hearing of the seventh defendant's motion.
LEAVE TO FILE THE MOTION 16Consistently with the requirements of the Civil Procedure Act 2005, I have come to the conclusion that the seventh defendant must have the leave sought in relation to the belated filing of his motion. That conclusion accords with the requirements of s 56, which requires that the Court's powers be exercised having in mind the overriding purpose of the Act, the just, quick and cheap resolution of the real issues in the proceedings; s 57 as to efficient and just case management; s 58 as to the dictates of justice; s 59 as to the elimination of delay; and s 60 as to proportionality of costs. 17In the circumstances, granting the leave sought will have no adverse impact on the plaintiff, given the conclusion which I have reached, namely that the orders which he seeks must be made. 18The case which the seventh defendant wished to advance in support of his motion was the same as that advanced to defend the plaintiff's motion. The resolution of the controversy between the parties depends on the proper construction of the Uniform Civil Procedure Rules and its application to the circumstances which have arisen. In so far as discretionary questions arise for consideration, I am satisfied that they favour the making of the orders which the plaintiff seeks, for reasons which I will explain.
THE CONSTRUCTION OF THE RULES 19In News Corporation Ltd v Lenfest Communications Inc Giles CJ Comm D came to the view that Lenfest should not at that stage of the proceedings, be required to produce documents which fell into three broad categories, in proceedings brought for damages, equitable compensation for damages and contravention of ss 51A and 52 of the Trade Practices Act 1974 (Cth). His Honour discussed the differences between a subpoena for production addressed to a third party and a notice to produce operating between parties to the proceedings (at 256). He rejected Lenfest's argument that the Rules should be read down as not applying to a foreigner who had not submitted to the jurisdiction, observing at 257- 258: "The basis for the decision in Siskina (Cargo Owners) v Distos SA , as interpreted in Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd , cannot be transposed to the situation before me. Accepting that the court has no power to make orders against persons outside its territorial jurisdiction unless authorised by statute and that there is no inherent extra-territorial jurisdiction (see Waterhouse v Reid [1938] 1 KB 743 at 747, cited in Mercedes Benz AG v Leiduck (at 296-297)), under the authority of statute Pt 36, r 16 confers a power. The invocation of the power is controlled by the need for prior leave or confirmation in the case of service of a notice to produce upon a foreign defendant who does not have an address for service (see Pt 10, r 3), and by the provision for an order otherwise in the case of service of a notice to produce upon a foreign defendant who has, by applying pursuant to Pt 11, r 8, provided an address for service and is at least to the extent of his application participating in the proceedings. Production of documents is part of the court's procedures to arrive at a final judgment including the steps towards that result such as resolving any dispute over the court's jurisdiction or the exercise of its jurisdiction, and differs from the grant of a Mareva injunction; further, absence of power when there is no jurisdiction over the defendant for a substantive judgment does not mean that there is no power for the purpose of determining whether there is jurisdiction or whether jurisdiction should be exercised: compare Altertext Inc v Advanced Data Communications Ltd [1985] 1 WLR 457 holding that an interlocutory injunction of the Anton Piller kind ( Anton Piller K G v Manufacturing Processes Ltd [1976] Ch 55) against a foreigner before service of originating process had a "provisional" or "suspended" effect until the assumption of jurisdiction was complete; but note the doubt expressed in ANZ Grindlays Bank PLC v Hussein (1991) 4 WAR 296 at 300. In my view, therefore, unless on its proper construction it does not extend to that situation (which was Lenfest's second argument), Pt 36, r 16 empowers service of a notice to produce where one of the parties is a foreigner who has not submitted to the jurisdiction of the court and has on foot an unresolved contest over that jurisdiction. It is not excluded simply because jurisdiction or the exercise of jurisdiction is in question. It might be observed that if the argument were correct there would be no power for the court to make interlocutory orders, at Lenfest's request, binding upon News, for the purposes of or pending the outcome of its application pursuant to Pt 11, r 8. The validity of the notices to produce served by a party in the position of Lenfest, at least so far as it was seeking a favourable discretion not to exercise jurisdiction, was upheld in Cigna Insurance Australia Ltd v CSR Ltd (Rolfe J, 10 November1995, unreported), with the observation that it may well be that a similar conclusion would be reached if the application were brought under the other provisions of Pt 11, r 8." 20At 259-260, he observed: "It is not entirely clear whether Arhill Pty Ltd v General Terminal Co Pty Ltd relevantly involved construction of the rule providing for service of subpoenas to exclude service on a foreigner (no power) or refusal of leave to serve the subpoena (power but adverse exercise of discretion). I am inclined to think the latter (as for example it is seen in Nygh, Conflict of Laws , 6th ed (1991) at 67), but whether or not that is so I do not think Pt 36, r 16 should be read down in the manner suggested. In combination with the definition of "party" it clearly empowers service of a notice to produce on a foreign party; the argument for reading it down on comity grounds is not compelling; and there is appropriate control over the exercise of the power through the need for prior leave or confirmation and the provision for an order otherwise already mentioned. There may be circumstances in which, while jurisdiction is still in question, the foreign party will want to serve a notice to produce on the party in the jurisdiction (as in Cigna Insurance Australia Ltd v CSR Ltd ) and if Pt 36, r 16, not be read down so as to exclude that situation, construing it to exclude service of a notice to produce in the opposite direction would call for re-writing going beyond construction. In my view, therefore, Pt 36, r 16 of the Supreme Court Rules is not to be read down so that it does not empower the service of the notice to produce. The power is conferred, but is controlled by (here) the provision for an order otherwise." 21His Honour concluded that in the particular circumstances of that case, he would otherwise order, observing at 261-262: "Restraint in the imposition of the Court's compulsory processes on Lenfest is rather qualified by its involvement, via subsidiaries, in the commercial pursuits in Australia with which these proceedings have a strong connection; further, if the agreement alleged were made (and I appreciate that it is not established, although it did not seem in dispute) Lenfest itself reached out to Australian commerce. It may be thought not repugnant to American sovereignty, in those circumstances, to require Lenfest to obey the obligation imposed upon service of the notice to produce, when as well Lenfest has participated in the proceedings to the extent of a positive application contesting the Court's jurisdiction, so that it is appropriate to subject Lenfest to the Court's compulsory processes relevant to determining the contest over jurisdiction. Subpoenas against persons within Australia have been upheld although for the purpose of determining whether an order giving leave to serve originating process outside Australia should be discharged: see WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472[PDF]. Nor would it necessarily be futile to leave on foot compliance with the notice to produce (concern for the integrity of the Court's commands requires that it not make futile orders, and that has been seen as reason enough for refusing leave to serve subpoenas on persons outside Australia where the subpoenas could not be enforced: see Arhill Pty Ltd v General Terminal Co Pty Ltd and Aetna Pacific Securities Ltd v Hong Kong Bank of Australia Ltd (Giles J, 29 April 1995, unreported)). Failure to comply with the notice to produce could be sanctioned by, for example, refusal to entertain Lenfest's application. All these are reasons for declining to make an order otherwise. But against them stands the compelling consideration that Lenfest is a foreign corporation, served out of Australia, over which the Court asserts jurisdiction only when it is sufficiently shown by News that (inter alia) the proceedings fall within one of the cases in Pt 10, r 1A of the Supreme Court Rules . It is difficult to conceive of leave to serve a subpoena or a notice to produce upon such a foreign defendant who does nothing, that is, does not apply pursuant to Pt 11, r 8 (or Pt 10, r 6A), in order to assist the plaintiff to establish the Court's jurisdiction. Whatever its strength, and whether or not its strength varies according to the circumstances, from the comity earlier discussed a foreign defendant served outside Australia should not lightly be subjected to the jurisdiction of this Court, but more important should not have imposed upon him one of the Court's compulsory processes in aid of establishing the jurisdiction itself. That position is not changed when, while contesting the jurisdiction, the defendant participates in the proceedings with a view to establishing the absence of jurisdiction. As was said in Re Sherlock (1991) 102 ALR 156 at 159, in connection with leave to serve outside Australia, "it would not be right ... to make the orders and allow the persons served to take the objection; rather the objection is one the court ought to take at this stage" and a person served outside Australia should not have to submit to a partial exercise of jurisdiction as the price of contesting whether there is jurisdiction at all. And it may be added that there would realistically be futility in leaving on foot compliance with the notice to produce, since if Lenfest's application were not heard it would simply continue to deny that the Court had jurisdiction over it - there would be no determination against Lenfest, and News would still have to obtain leave to proceed under Pt 10, r 2(1). So far as Lenfest's application raises whether, although it has jurisdiction, the Court should decline to exercise that jurisdiction, the position may be different. On the hearing of that application questions of comity will not arise, or if they do will arise in limited ways (such as regard to existing proceedings elsewhere) or with less significance. There will no longer be a question of News discharging from Lenfest's own documents its burden of sufficiently showing that the proceedings fall within one of the cases in Pt 10, r 1A. But it will be more readily said that Lenfest is properly subjected to the Court's compulsory processes relevant to determining the contest over the exercise of jurisdiction: for example, if Lenfest can serve a notice to produce on News to assist it to establish something relevant to forum non conveniens (see Cigna Insurance Australia Ltd v CSR Ltd ), why should News not serve a notice to produce on Lenfest for the same purpose and have the notice to produce upheld? News referred in this regard to Partenreederei M/S "Heidberg" v Grosvenor Grain and Feed Co Ltd (The "Heidberg" ) [1993] 2 Lloyd's Rep 324 for acceptance that the principle that "if you join the game you must play according to the local rules" extends to defendants who give notice of intention to defend, but that is different from contesting the jurisdiction on forum non conveniens grounds, and it may even be that the documents sought by the notice to produce have no relevance to that aspect of the application pursuant to Pt 11, r 8. I do not express a concluded view upon an order otherwise so far as Lenfest's application asks that the Court decline in its discretion to exercise its jurisdiction in the proceedings. In the manner the present notice of motion was argued, I do not think a decision upon such an order otherwise can properly be made without knowing what the issues will be on that aspect of the application, and it may be that the parties would wish to put further arguments specifically directed to the notice to produce so far as relevant to forum non conveniens. The present order otherwise should therefore leave future compliance with the notice to produce subject to further order." 22In the result his Honour invited further submissions as to whether production as to Lenfest's forum non conveniens ground should then be required, or whether, in the first instance, Lenfest's jurisdictional argument should be dealt with. 23In this case the parties agreed that his Honour's approach was one which still applied to the current Rules, including the provision made in Part 21 of the Uniform Civil Procedure Rules here in contention. I agree with that common position, even though the Civil Procedure Act does not contain a definition of 'party' as formerly appeared in s 19 of the Supreme Court Act , a definition to which Giles CJ Comm D also referred in reaching his conclusions. There is a definition of 'party A' and 'party B' in r 21.9, as well as a definition of 'active party' in the Dictionary: " party A means a party to whom another party is producing, or being asked to produce, documents or things for inspection. party B means a party who is producing, or being asked to produce, documents or things for inspection. active party , in relation to any proceedings, means a party who has an address for service in the proceedings, other than: (a) a party against whom judgment has been entered in the proceedings, or (b) a party in respect of whom the proceedings have been dismissed, withdrawn or discontinued, being, in either case, a party against whom no further claim in the proceedings subsists." 24In s 21 of the Interpretation Act 1987, 'party' is defined as 'includes an individual, a corporation and a body corporate or politic.' 25In the absence of a more specific definition of the word 'party' in this statutory scheme, the word must be given its ordinary meaning. In the Macquarie Online dictionary it is relevantly defined as: "... a person immediately concerned in some transaction or legal proceeding" 26In Re Bauhaus Pyrmont Pty Ltd (in liq) [2006] NSWSC 879; (2006) 67 NSWLR 289, Austin J discussed the absence of a definition of 'party' in the Uniform Civil Procedure Rules (see at [9] to [26]), in the context of costs orders. His Honour observed at [13] - [14]: "13 Rolfe J relied (at [34]) on Law Society of New South Wales v Jackson [1981] 1 NSWLR 730. In that case, as his Honour observed, the Council of the Law Society had participated in a proceeding before the Statutory Committee, although it was not, at least on one view and perhaps strictly speaking, a party. Samuels JA, with whom Reynolds and Mahoney JJA agreed, said (at 735): "A party, essentially, is a person who takes part in legal proceedings and that is the definition to be found in Jowitt's Dictionary of English Law , at p 1302. It cannot reasonably be doubted that the Council took part in these proceedings." 14 This concept of "party" is consistent with the observations of Mason CJ and Deane J in Knight v FP Special Assets Ltd (1992) 174 CLR 178, at 190, according to which the word "party" is not confined to a person on the record in the proceedings. See also Victoria Legal Aid v The County Court of Victoria (2004) 9 VR 686; King v GIO Australia Holdings Ltd (2001) 116 FCR 509." 27At this stage of these proceedings, even though the seventh defendant is a foreigner resisting the Court's jurisdiction over him, he is a party to the proceedings, indeed an active party as defined in the Dictionary to the Rules. Until he establishes that the Court lacks jurisdiction, or the Court comes to the conclusion that it should exercise the discretion which he seeks to have exercised in his favour, namely that it not exercise the jurisdiction which it does have over him, he remains a party. 28In my view, for the reasons discussed by Giles CJ Comm D in News Corporation Ltd v Lenfest Communications Inc , there is no basis on which Part 21 of the Civil Procedure Rules may be read down as not applying to the interlocutory proceedings by which a foreigner such as the seventh defendant seeks to establish the Court's lack of jurisdiction, or by which he asks the Court to exercise its discretion to dismiss or stay proceedings brought against him. The Rules provide the mechanisms whereby the parties bring their cases to the Court for determination. In some cases, production of documents will be a step taken towards the resolution of a dispute over the existence and exercise of the Court's jurisdiction over a foreigner. 29Rule 21.10 empowers service of a notice to produce on a foreigner such as the seventh defendant, who has not submitted to jurisdiction and has on foot an unresolved contest over jurisdiction, when in pursuit of his argument he refers to documents in pleadings or affidavits and witness statements filed in the proceedings. Rule 21.11 obliges such a foreign defendant to produce those documents. There is no shift of onus to the party who has issued the notice to produce, in the event that the foreign defendant resists such production by way of an application under r 21.11, that the Court otherwise order. The fact that the foreign defendant is seeking to challenge the Court's jurisdiction is rather an important factor to be considered in the determination of whether such an order should be made, in the particular circumstances there before the Court. The analogy sought to be drawn with the High Court's approach in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 to the question of the significance of the value of free speech in considering the question of restraint of publication, does not to my mind assist in the resolution of the proper construction of the Rules.
Should the Court otherwise order? 30Whether in this case the Court should 'otherwise order' in relation to the notices which have been given, requires separate consideration. On 31 March 2011, the seventh defendant's motion is listed for hearing. It is advanced on three bases identified in the written submissions which have been filed for the seventh defendant as: "(a) Does the plaintiff's case fall within one of the clauses in Schedule 6 to the UCPR (see Agar v Hyde at [55]) such that service outside the jurisdiction was authorised by the UCPR ? (b) Is the Court an inappropriate forum for the trial of the proceedings against Mr Karaka? (c) Does the claim against Mr Karaka have insufficient prospects of success to warrant putting him to the time, expense and trouble of defending the claim (see Agar v Hyde at [55])?" 31The publications in respect of which the seventh defendant is sued are oral publications which are denied (the 15th and 17th matters) and an email alleged to have been republished (the 14th allegation). The oral publications are claimed to have been made to the plaintiff's former wife. The seventh defendant does not deny communicating with the plaintiff's former wife, who he says was in Israel while he was in America, but he does deny the alleged publications. 32The seventh defendant's argument was that the question of whether the alleged oral communications took place will have to be determined as a matter of credit between him and the plaintiff's former wife. The emails referred to in his affidavit are not relevant to that question, because they concern other communications between he and the plaintiff's former wife, not the subject of any allegation in these proceedings. 33The underlying purpose of r 21.10(1)(a), which requires production of a document referred to in an affidavit, amongst other documents filed or served in the proceedings, is readily apparent, namely, that the reference to the documents itself reflects that the party relying on the affidavit perceives that the document has some relevance to what is in issue in the proceedings. Were that not so, the document would not be referred to, or sought to be relied on, by that party. That explains why production of such documents is not limited to 'documents taken to be relevant to a fact in issue' (as defined in r 21.9(2)). 34It is settled that it is the party resisting the obligation to produce such a document, who must satisfy the Court that production should not be required. In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Pty Ltd [2007] VSC 450 at [30] - [35], Hollingsworth J observed: "30 If a party chooses to refer to a document in a court document, such as an affidavit, the other side is entitled to serve a notice to produce that document under rule 29.10. A party served with such a notice may refuse to provide inspection in the two circumstances set out in rule 29.10(4). 31 If a party refuses to provide inspection, either pursuant to rule 29.10(4) or on some other ground, the other party may bring an application under rule 29.11, seeking to compel the production. 32 The harshness which might otherwise flow from a strict, literal reading of rule 29.10 can be alleviated by the breadth of the court's discretion under rule 29.11. Where an application is made under rule 29.11, for an order compelling compliance with rule 29.10, the court "may order the [defaulting] party to do such act as the case requires." 33 In Crown Joinery v Lyleho ([2007] VSC 214), Maxwell P held that the obligations which a notice to produce imposes are similar to those imposed by a subpoena, and the considerations which apply to setting aside a subpoena are equally applicable to a notice to produce. (At [31]. Although Maxwell P referred to the commentary on rule 35.08 as authority for this principle, he was in fact dealing with a notice to produce under rule 25.10, and clearly intended the principles to apply to both procedures.) In particular, a notice to produce can be set aside on the grounds that it is too wide, oppressive or "fishing". (Ibid at [34].) Similar principles were applied by Habersberger J in Verduci v Macquarie Bank Limited ([2003] VSC 77), in relation to notices to produce under either rule 29.10 or rule 35.08. In deciding whether a notice to produce involves impermissible "fishing", the court must obviously have regard to the issues in the case and the possible relevance of the document. Similarly, in KC Park Safe Pty Ltd v Commissioner of State Revenue, ([1999] VSC 4) Beach J refused to order the production of documents in answer to a notice under rule 29.10, on the grounds of public interest immunity. 34 Whilst the court's discretion is broad, the party resisting the production of a document to which it has referred in a court document, bears the onus of establishing why production should not be ordered. 35 It has frequently been said that the rationale for a rule such as rule 29.10, as far as pleadings is concerned, is that reference to the document has the same effect as if the document were fully set out in the pleading. The position is not quite the same with an affidavit, particularly one relied upon for an interlocutory application. (As recognised by Sanderson M in Buyquick.Com Ltd v Foxgold Pty Ltd [2004] WASC 180.) A party refers to a document in an affidavit as evidence in support of its case. Ordinarily, an opponent is entitled to test evidence through various means." 35Here there is no question as to what the documents sought are. It is only a number of emails identified by the seventh defendant himself, which remain in issue. The parties are disagreed as to whether or not the emails could be relevant to the question of whether or not the disputed communication was made by the seventh defendant to the plaintiff's former wife. The seventh defendant also argued that the production required is a fishing exercise, designed to discover whether other allegations as to defamation could be advanced against him. The plaintiff's case was that was not his purpose. Rather, what he seeks is to exercise the right granted him by the Rules, to be given access to documents on which the seventh defendant seeks to rely, in order to advance the case he brings against the plaintiff by the motion due to be heard on 31 March 2011. 36Relevance is one basis upon which it was argued that the seventh defendant should be relieved of the obligation to produce such documents in contest. Given the provision made in r 21.10(1)(a), the question of production may not, however, be determined solely on the basis of whether or not the document would be admissible in evidence. 37On the evidence led in relation to the parties' competing motions, given the reference made to the emails in the seventh defendant's January 2011 affidavit, I am not able to come to the view that the emails are not relevant, either in the proceedings generally, or on the motion. To the contrary, that the seventh defendant seeks to rely on them in order to advance his applications on the motion, suggests that in his assessment they are at least relevant to the determination of the issues raised by his motion. 38Assessment of their relevance to the allegations advanced against the seventh defendant by the plaintiff in his statement of claim is a different matter. Relevance of the emails to that issue depends on their contents. What that is has not been revealed. As the plaintiff argued, it is possible, for example, that the emails refer to other communications which would support the allegations which he advances in relation to the allegedly defamatory oral communications which the seventh defendant has denied making to the plaintiff's former wife. That it cannot positively be concluded that the emails contain material which could rationally affect the question of the making of the alleged communication, is not determinative of the question of their production at this point. It has not been established that they are not relevant. As the plaintiff argued, it is entirely possible that they do shed light on the parties' respective cases, even if not strictly admissible themselves. In the circumstances, that they could also conceivably shed light on the first defendant's case is also a possibility which ought not to be overlooked. 39It was also argued that even though there were other two bases apart from jurisdiction on which the seventh defendant pursues his motion, the production sought would not be required. This was because the case against him concerned a small number of alleged communications to a limited number of people, with the result that the possibility of any order being made against him was small. Given the time trouble and cost involved in the litigation, when considered together with the difficulty of enforcement of any order in America, the production sought should not be required, as a matter of discretion. The publications were so trivial that these proceedings amounted to an abuse of process (see Jameel v Dow Jones & Co Inc [2005] QB 946 at [69].) 40The difficulty with that submission, it seems to me, is that it seeks to shut the plaintiff out from access to documents on which the seventh defendant wishes to rely in order to advance his motion on 31 March 2011, on the same grounds as those to be advanced in support of the motion. As well as denying the plaintiff access to documents on which the seventh defendant wishes to rely as a basis on which the Court might be persuaded to exercise its discretion in his favour, it would pre-empt the determination of the very arguments which the seventh defendant wishes to press on the motion. In my view justice would not permit such a course. 41The fact that the seventh defendant not only challenges jurisdiction, but also seeks that the Court exercise a discretion in his favour, to my mind, is a reason for requiring production of the documents on which the seventh defendant seeks to rely, rather than refusing it. 42Given the limited nature of the production sought, it cannot be thought that there would be any practical oppression resulting from an order in favour of the plaintiff. What is in contest is one book which is now in the country and available to be produced and a few emails, on the existence of which the seventh defendant himself wishes to rely on 31 March 2011 to advance his motion. That also favours the refusal of the order which the seventh defendant now seeks and the making of the order which the plaintiff seeks. 43That the plaintiff has not put on any evidence to explain why he has not been able to obtain the seventh defendant's emails from his former wife, another matter relied on for the seventh defendant, is also in my view not a basis for refusing the order sought. The onus fell on the seventh defendant under the Rules to seek the Court to 'order otherwise' in relation to the production sought by the plaintiff. In the absence of such an application, the plaintiff was entitled to the production he had sought by notice and to approach the Court to seek orders requiring that production, when it was refused by the seventh defendant. The exercise of that right did not depend on the plaintiff giving the Court an explanation as to why he could not obtain the documents in question by some other means. In my view the absence of such an explanation, particularly given the way in which the matter came before the Court, is not a basis for refusing the order sought. 44The usual order as to costs is that they should follow the event. I am satisfied that is the appropriate order in this case. There were submissions advanced in relation to indemnity costs, but that was in a context where it was envisaged that the leave sought by the seventh defendant would necessitate an adjournment and further evidence and submissions. Given the course which the hearing finally took, that has not been necessary. 45For completeness, I note that I do not find this case analogous to that discussed in Leaway v Newcastle City Council (No 2) [2005] NSWSC 826 at [94]. The failure to give production as the Rules required, or to make an application that the Court otherwise order, was as the result of a particular view previously taken as to the necessity for the seventh defendant not to submit in any way to the Court's jurisdiction, rather than he simply ignoring the obligations which the Rules impose on parties who come before it.
ORDERS 46For the reasons given, I order that: (1) The seventh defendant is given leave to proceed on his motion of 18 March 2011 and the motion is dismissed. (2) That by 5pm on 23 March 2011 the seventh defendant produce for inspection: (a) each of the emails referred to in paragraph 7 of the affidavit sworn by him on 14 January 2011; and (b) the book referred to at paragraph 7 of the affidavit sworn by Mr Harry Melkonian on 28 January 2011. (3) The seventh defendant pay the plaintiff's costs of the motion, as agreed or assessed.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 March 2011
Barach
University of New South Wales
[2007] VSC 450
[2007] VSC 214
[2003] VSC 77
[1999] VSC 4
[2004] WASC 180
(2007) 164 FCR 123
(2006) 227 CLR 57
(1996) 40 NSWLR 250
(2006) 67 NSWLR 289
(1991) 4 WAR 296
(1992) 39 FCR 472
(1991) 102 ALR 156
(1992) 174 CLR 178
(2004) 9 VR 686
(2001) 116 FCR 509
[2006] HCA 46