Deeming v Pesutto

1. The applicant's application for leave to issue a subpoena addressed to Mr David Southwick MP is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J 1 The applicant seeks leave to issue a subpoena addressed to Mr David Southwick MP to produce the following: (a) A copy of any recording of any conversation or meeting you have had with the applicant, or Kim Wells, from 18 March 2023 to 12 May 2023 (inclusive). (b) A copy of any communication, in the period between 18 March 2023 and 12 May 2023 (inclusive), between you and any journalist about the applicant. (c) A copy of any communication, in the period between 18 March 2023 and 12 May 2023 (inclusive), between you and any of the following persons: (i) any member of the Victorian Parliamentary Liberal Party; or (ii) Alex Woff, Nick Johnston, Rodrigo Pintos-Lopez, Glenn Corey, Chantalle Asmar or Xavier Boffa; about the applicant. 2 The applicable legal principles are well established. See, by way of example only, Al Muderis v Nine Network Australia Pty Ltd (No 2) [2024] FCA 136 at [9]-[13] (Abraham J). 3 The party who seeks leave to issue a subpoena carries the onus of establishing that they are entitled to the documents sought and that leave should be granted. 4 They must demonstrate a legitimate forensic purpose in relation to the issues in the proceedings. The documents must have "apparent relevance" to the issues arising on the pleadings. 5 A document or class of documents may satisfy the test of apparent relevance if it gives rise to a line of enquiry relevant to the issues. 6 And, of course, a subpoena may not be issued if it is a "fishing expedition". 7 Here, it was submitted by junior counsel for Mrs Deeming, Mr Dean, that the late production by Mr Pesutto of an audio tape recording of a meeting held on 19 March 2023 taken by Mr Southwick "raises a question for the applicant as to what other relevant documents that Mr Southwick may have". 8 As to the first category of documents, it was submitted as follows: The first form is in relation to recordings themselves. The affidavit evidence discloses that Mr Southwick was in communications particularly with the applicant and Mr Wells. He was, in a sense, Mr Pesutto's representative in negotiations relating on 27 March, and having taken a secret recording of the meeting on the 19th, that's the basis on which we seek any further recordings that he may have taken of other conversations that he had. 9 As to the second and third categories, the submission was put this way: Similarly, with the second type of document that's sought in relation to communications with journalists, Mr Southwick - there was evidence in - Mr [Southwick] raised his media release on the 18th, and there were other communications with journalists in those following days, and Mr Southwick, certainly in his communications with Mr Wells, was a representative of Mr Pesutto, and if there had been any such communications, these wouldn't have been discovered. But he has had a track record of communicating with media on behalf of the Parliamentary Liberal Party, and on behalf of Mr Pesutto as well, and that's why those documents are sought. And then, finally, he is also an integral part of the communications with Mr Pesutto's broader team, and there are a number of communications that your Honour has been taken to [in] opening between Mr Pesutto's team, such as Mr Johnston, Mr Woff, Mr Pintos-Lopez, and it's for completeness that we are seeking the communications with Mr Southwick, because they may have lost documents that he still has on his particular devices. And also, the evidence establishes after the 19 March meeting that Mr Southwick had communications on behalf of the leadership teams with various members of the Parliamentary Liberal Party in terms of to explain the decision to take the step to make a motion to expel, which ultimately was heard on the 27th, and, once again, he may have a record of those, such as the recording that he has of the 19 March meeting. And that's the basis - those are the three categories. 10 In my view, none of the documents of the type described in the application for a subpoena - that is, recordings or communications between Mr Southwick and the applicant, and Mr Southwick and third parties - have any apparent relevance to any pleaded issue in the case, including whether the pleaded imputations were conveyed, any of the defences pleaded by Mr Pesutto, or damages. In any event, any such relevance was not explained. 11 As senior counsel for Mr Pesutto, Dr Collins, submitted, there are three problems with the documents sought: The … issues are what is the relevance of an interrogation of Mr Southwick's state of mind in a proceeding in which he is not a party and where the defences principally turned upon Mr Pesutto's state of mind. Secondly, if the relevance is said to be Mr Southwick's credit, well then it is purely a fishing expedition on the basis of presumably some inference that your Honour is being invited to draw in relation to the existence of the recording which emerged last week. And, thirdly, it's bad in form, because it's not properly limited as to subject matter. 12 As Dr Collins further submitted, and I agree: Mr Southwick's conduct with third parties has no relevance in a suit in which Mr Pesutto is the sole defendant. Now, they could go - the documents which are sought could go to Mr Southwick's credit. We can see that. In that if Mr Southwick had been, as a matter of course, recording conversations or meetings which he had not disclosed in his affidavit, that's a matter that could be cross-examined upon. But it's a pure fishing expedition going only to matters of credit as we read the subpoena. 13 It was put in reply that cross-examining Mr Southwick about such matters may lead to delays if documents are called for in that process. That may be so, but it is not a reason to grant leave to issue a subpoena when leave is otherwise not justified. 14 For those reasons, the application to issue a subpoena to Mr David Southwick MP is refused. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.