BUSWELL -v- CARLES [2012] WASC 509 (28 December 2012)

3 On 14 December 2012 the plaintiff issued a subpoena to produce addressed to the non party. The subpoena is returnable by 10.00 am on 28 December 2012.

Any documents (including handwritten notes, emails, letters and audio recordings) that record or note the comments made (whether in writing or verbal) by Ms Adele Carles to Joe Spagnolo or any other journalist employed by The Sunday Times in or about early December 2012 which ultimately resulted in the following articles being published in the 9 December 2012 edition of The Sunday Times newspaper:

1. the article at page 7 - 'TROY'S AT IT AGAIN' with the subheading ''Gyrating' Buswell struck in boozy hijinks at a party'; and
2. the article at page 40 - 'Too much horseplay a handicap for Buswell'.

5 On 24 December 2012 the non party filed a chamber summons to set aside the subpoena on the following grounds:

The subpoena is an abuse of process because no legitimate forensic purpose can be ascertained at this stage of the proceedings. The subpoena is also oppressive.

6 There has been no conferral. Normally this would be fatal to the application. However, the Christmas season has intervened limiting opportunity and I will excuse nonconferral.

7 In due course the action will be entered into the defamation list. However, in view of the return date on the subpoena it is dealt with by the Duty Judge.

8 The subpoena is too wide and I excise the words 'or any other journalist'.

9 Otherwise, the subpoena is valid and the non party must comply.

10 These are my reasons for reaching that conclusion.

11 The indorsement of claim appears to comply with the Rules of the Supreme Court 1971 (WA) O 6 r 2. An appearance has been entered. No statement of claim has been filed but that is the next step in the action.

12 The non party argues that the subpoena was issued only four days after the indorsed writ and prior to any pleading.

• the subpoena does not relate to any matter in issue between the parties to the action;
• has no legitimate forensic purpose;
• is premature;
• is a fishing exercise;
• is otherwise oppressive and is too wide.

14 Counsel for the non party acknowledges that there is no formal bar to an early return of a subpoena. However, the matter should progress normally. The plaintiff should do his best with a statement of claim. If necessary, failing admissions, the plaintiff can interrogate the defendant or even seek discovery. Counsel cites authorities that support. Hambly v Joseph Charles Learmonth Duffy Pty Ltd [2004] WASC 142 is said to set out the normal course: per Master Newnes [14]. However, the normal course is not an answer to the use of a different procedure, one not barred under the Rules.

15 Applications such as this must be looked at through the lens of Rules of the Supreme Court O 1 r 4A and the elimination of delay beyond what is reasonably required in the interests of justice.

16 It may be that an early issue of a subpoena will cause delay or expense rather than diminish it: Wookey v Quigley [No 5] [2011] WASC 275 is an example. But not in every case. The principles outlined by K Martin J in Wookey v Quigley [No 5] are of general application and I apply them:

The current case flow management regime now applicable to civil actions was explained by the Chief Justice in Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 3] [2009] WASC 67. In addressing redaction issues arising around certain documents produced on discovery, the Chief Justice noted the introduction of O 1 r 4A and r 4B and the significance of those rules towards the resolution of discovery issues. Although I am dealing with inspection objection issues over documents produced on subpoena, similar considerations guide the task of trying to keep the breadth of documents turned over in preparation for a trial within manageable bounds. It should be remembered that there has been a recent liberalisation of the procedures under which a party in civil litigation may have a subpoena returnable and answered before trial. A former requirement for leave to be obtained for an early return before trial of a document subpoena has been removed: see O 36B r 3(6) and Consolidated Practice Direction [4.3.7] pars 4, 5 and 14 and Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [2007] WASC 276. So the principles applicable to case flow management have intensified since the Full Court decided Apache Northwest.

Nevertheless, what is now a relatively unconstrained right for a party to issue a document subpoena returnable before trial is potentially capable of producing forays into fields of documentary irrelevance. This carries with it considerations of expense for the litigation. There is in consequence now scope to compound an already existing problem with a seemingly uncontrollable cost and parameters of the pre-trial discovery processes that threatens to render the cost of civil litigation prohibitive for all but the wealthiest of litigants.

Accordingly, a firm curial oversight must be kept upon these compulsive pre-trial documentary processes, lest they become abused or unduly oppressive in their ramifications for parties to litigation [35] [37].

17 Although Mr Maclaurin was at pains to point out the dire consequences for media organisations generally if the subpoena is allowed to stand, I must decide in the circumstances of this case.

18 The non party puts great store on the fact that the plaintiff has yet to plead. Until a statement of claim is pleaded the cause of action is not defined so it is asserted.

19 However, the indorsement of claim establishes the four corners of the cause of action. It is specific and the subpoena relates directly to the claim.

20 It is proper case management for measures to be utilised that will lessen the need for amendment of an eventual statement of claim. This subpoena may do so.

21 The defendant may nor may not admit the pleading but there is no present pressing reason to wait when simple means are at hand to draft a precise pleading. Pleading the exact wording as soon as possible is to be encouraged.

22 Apart from one aspect, the subpoena does not appear to be fishing. That aspect relates to the material made by 'any other journalist'. That goes beyond parameters set by the indorsement of claim and I strike out these words.

The question of balancing the interests of justice

23 It is argued that the subpoena will cause the non party to disclose confidential information. This is correct to a degree. However, most subpoenae to produce do that.

24 There are protections for confidential information including limits on inspection of documents. The non party published the essence of what is being sought. No question of journalists privilege (if such a thing exists) or protection of sources arises. The article purports to quote the defendant directly and of course, names her prominently. Confidentiality alone or in combination with other factors is insufficient to set aside the subpoena.

25 The non party asserts that the subpoena has the effect of seeking discovery without the protections afforded to the non party under the Rules of the Supreme Court O 26A.

26 This is a fair point. It is not a legitimate use of the subpoena process to bypass Rules of the Supreme Court O 26A: Temwell Pty Ltd v DKGR Holdings Pty Ltd [2002] FCA 741 [3] (Merkel J).

27 However, it is legitimate that 'when ... considerations of justice and convenience require production of relevant documents at some particular time, whether before or after trial, production should then be ordered': Lucas Industries Ltd v Hewitt (1978) 18 ALR 555, 566 (Smithers J).

28 I judge this as such a case. The early return of the subpoena will enable a precise statement of claim to be pleaded.

29 On 12 December 2012 the plaintiff's solicitor sent a concerns notice to the non party. The notice elicited a trenchant response from the non party's solicitor on 20 December 2012. The plaintiff's solicitor responded on the same day indicating that he and his client would give consideration to the matters raised.

30 However, I proceed on the basis that the threat of legal action by the plaintiff against the non party is very real.

31 The question is whether the subpoena becomes oppressive in the light of the threatened action.

32 It is difficult to see how. Publication by the non party occurred on 9 December 2012 for good or ill. If there is to be an action, it is based on that article.

33 The plaintiff and his solicitor have a legal obligation to use any documents obtained through subpoena only for the purposes of the present litigation: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.

34 I am unpersuaded that compliance with the subpoena would cause sufficient oppression to the non party to set aside the subpoena which, in this case, is likely to facilitate the ends of justice.

35 The non party must comply with the amended subpoena.