Lehrmann v Network Ten Pty Limited

1. Paragraph 3 of the notice to produce filed and served by Ms Wilkinson on 10 March 2023 be set aside. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 I would not usually publish reasons for making an order setting aside a paragraph of a notice to produce. The demands of getting out timely judgments on substantive matters are vexing enough without requiring the production of detailed reasons as to routine matters of practice and procedure. But reasons were specifically requested by senior counsel for Ms Lisa Wilkinson, a respondent to defamation proceedings (Lehrmann v Network Ten Pty Limited & Anor (NSD 103 of 2023) (Network Ten Proceeding)) commenced against her and Network Ten Pty Limited (Network Ten) by Mr Bruce Lehrmann. 2 The real issue before the Court at present is whether Mr Lehrmann is entitled to an extension of the limitation period prescribed by s 14B of the Limitation Act 1969 (NSW) to maintain the Network Ten Proceeding and a related proceeding. While the resolution of this (and a related) application involves a consideration of the objective circumstances as a whole, the assessment proceeds by reference to Mr Lehrmann's position and whether, objectively, it would not have been reasonable for him, in the light of all of the circumstances, to commence proceedings within one year: Joukhador v Network Ten Pty Ltd [2021] FCAFC 37; (2021) 283 FCR 1 (at 11-12 [49]-[54] per Rares, Wigney and Bromwich JJ). 3 There has been a plethora of requests for the production of material in relation to the applications for an extension of time. 4 On 3 March 2023, my Chambers was provided with a number of draft subpoenas proposed to be issued at the request of Network Ten. The subpoenas were bad in form and were oppressive; and I refused leave for them to be issued. I did, however, grant leave for subpoenas to be issued in a narrower and more orthodox form. Those subpoenas were served on third parties and were the subject of later production. 5 On the same date, my Chambers was provided with two notices to produce in the Network Ten Proceeding, one served on Mr Lehrmann by Network Ten, and another by Ms Wilkinson. A communication was subsequently received from Mr Lehrmann, advising he objected to the terms of the notice served by Network Ten. Mr Lehrmann also put on short submissions objecting to the notice served by Ms Wilkinson. 6 Given the pendency of the hearing of the applications for an extension of time, I listed the matters on short notice to hear any argument concerning whether the notices should be set aside, in whole or in part. Shortly before the listing, the parties notified my Associate that the dispute as to both notices had been resolved. This resolution involved Mr Lehrmann consenting to the production of documents, including documents that did not seem to me to be apparently relevant to the determination of these applications. Mr Lehrmann also consented to draft orders requiring production of privileged documents, but I presumed this was an oversight by those acting for him, and I amended the consent orders to relieve him of this obligation. 7 But this was not the end of the requests for production of documents. On 10 March 2023, Ms Wilkinson's solicitors served a second notice to produce (Notice) on Mr Lehrmann, requiring him to produce the following documents: 1. All documents recording or constituting communications taking place between 12 February 2021 and 12 December 2022 between the applicant and any person or persons being described as "And another who's says I'm up for a bit of money" in the text message sent [from] the Applicant's mobile phone at 10:37 pm on 15 February 2021 (the Civil Lawyer), a copy of which is attached to this Notice. 2. All documents comprising notes, audio recordings and other communications (including text messages, emails, WhatsApp messages, letters, retainers) recording or referring any legal advice given to the applicant by the Civil Lawyer between 12 February 2021 and 12 December 2022 in relation to potential defamation proceedings. 3. The documents compromising the "Cellebrite report" identified in the letter from the lawyer for the applicant to the lawyer for the second respondent of 7 March 2023. 8 Mr Lehrmann sought to have paragraph three of the Notice set aside. The other two paragraphs were uncontroversial. 9 The evidence establishes that the "Cellebrite report" (Report), the subject of paragraph three, was created by the Australian Federal Police on the date Mr Lehrmann's mobile phone was seized pursuant to a search warrant. No content from the Report was admitted into evidence in the criminal proceedings in the Supreme Court of the Australian Capital Territory. 10 The Report comprises some 39,823 pages and includes the entire contents of Mr Lehrmann's mobile phone as at 19 April 2021, including but not limited to: Mr Lehrmann's contacts; his calendar; his call logs; his chats including WhatsApp messages; emails; instant messages; GPS tracking; notes; cookies; data files including audio, documents, images, text and video files; installed applications; and searched items. Some data is from as long ago as October 2017. When one pauses for a moment to consider how much detail as to a contemporary Australian's life is recorded, in one way or another, by applications operated on their mobile phone, the prodigious scope of this request for production becomes apparent. 11 The principles relating to notices to produce are well known and do not require repetition. It suffices for present purposes to note that: (1) it is for Ms Wilkinson to establish that the documents the subject of the Notice are sufficiently relevant to justify production; and (2) the material sought must have an apparent relevance to the issues before the Court in that they are reasonably likely to add, in the end, in some way or other, to the relevant evidence. 12 It may be that authorities focussed on "apparent relevance" need to be revisited and tempered somewhat in the light of the enactment of Pt VB of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which provides that any discretion exercised by the Court must be exercised in such a way as to facilitate the overarching purpose, being the just, quick and inexpensive resolution of the issues between the parties. In trying to keep costs proportionate in accordance with this statutory mandate, the Court has, in a number of ways, sought to minimise the unnecessary production of marginally relevant documents by parties. Part VB, together with the refinement of standard discovery (which only requires the discovery by a party of documents that are "directly relevant" to a fact in issue in the proceedings and which fall within the other requirements of r 20.14 of the Federal Court Rules 2011 (Cth) (FCR)), suggest that the wider notion of "apparent relevance" might now be thought to be somewhat anomalous. Despite this, the "apparent relevance" approach to notices to produce is presently entrenched and the result of this application would be the same irrespective as to whether a stricter approach of likely direct relevance to a fact in issue had been adopted. 13 Despite the call for production in paragraph three being clearly oppressive, Ms Wilkinson sought to defend it on two bases. 14 First, it was said that the entirety of the Report was apparently relevant to a fact in issue on the present applications, being Mr Lehrmann's state of mind in the period 15 February 2021 to 16 December 2022. In pursuit of this submission, counsel took the Court to paragraph ten of an affidavit sworn by Mr Lehrmann's solicitor, Mr Paul Svilans, on 1 March 2023 (Svilans Affidavit), which reads as follows: Mr Lehrmann started receiving messages from friends asking whether he was the individual the subject of the allegations made by Ms Higgins … (as they knew he had worked for Ms Reynolds at the relevant time). Mr Lehrmann also sent messages to several friends to the effect: "I used to work with her. I hope people don't think it's me". 15 It was said that production of the Report was necessary to facilitate access to the messages to which Mr Svilans refers. Counsel pointed to other messages already produced which were said to contradict the position outlined in the Svilans Affidavit. 16 Further aspects of the Svilans Affidavit were also emphasised, including representations made by Mr Lehrmann to Mr Svilans as to his feelings in the immediate aftermath of the impugned publications and his belief he had been identified by friends, colleagues and on social media (at [18]). 17 Ms Wilkinson's second point was that parts of the Report have already been produced, and because a notice to produce calls for documents to be produced, the entirety of the Report should be produced. 18 These submissions are devoid of merit. Although a timely and properly drawn request for production could be envisaged as to some limited material, I was not prepared to allow the Notice to become a vehicle for the production of a vast range of information which, on any rational view, could never be discoverable and, more importantly, has no apparent relevance to the disposition of the present application. 19 Mr Lehrmann's state of mind at particular points in time is relevant and the apparent relevance test has been described as having a low threshold (Wilson v Britten-Jones (No 2) [2020] FCA 1290 (at [55] per Abraham J)), but this is not some sort of roving enquiry into everything Mr Lehrmann thought, did, watched, said or where he went during the limitation period (a fortiori since October 2017). 20 At the risk of repetition, paragraph three constitutes a classic "fishing expedition". The notion paragraph three only calls for "one document" might literally be true, but is beside the point. Just because, for some reason, Mr Lehrmann agreed to produce voluntarily some material (some of which is not apparently relevant) does not mean production of the entirety of the Report should be required, not least where it runs to almost forty-thousand pages. 21 For the above reasons, I set aside paragraph three of the Notice. Instead of spending time pressing and subsequently arguing at the hearing about an oppressive call, it would have been more consistent with the overarching purpose to spend time well in advance of the hearing calibrating and then serving a more refined and non-oppressive request for identified documents in the Report. 22 Mr Lehrmann also seeks an order for the costs of his application. Subject to hearing from Ms Wilkinson, my preliminary view is that the usual course of costs following the event is appropriate. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.