National Australia Bank Limited v The Computer Supply Store

"Where the sustainability on grounds of relevance of a notice to produce is called into question, the issuer bears at least a forensic onus of identifying how the documents called for by the notice are said to relate to a fact in issue in the case. A document relates to a fact in issue if it bears on the probability of that fact."

12 The plaintiff submits that the documents sought in paragraph 7 do not relate to the property; and/or the facilities of the first defendant, Mr De Simone and/or the second defendant. The plaintiff further submits that paragraph 7 will in no way bear upon the probability as to whether:

(i) the second defendant has any interest in the property; (ii) the first defendant and or Mr De Simone had declared a trust over the property in favour of the second defendant or any other person;

(iii) the plaintiff was aware of any interest that the second defendant may have had in the land; and

(iv) the plaintiff's interest as mortgagee was subject to any interest that Lynpland or any other person may have in the land.

13 The plaintiff contends that what is articulated by the second defendant as the relevance of paragraph 7 of the notice to produce is nothing more than a "fishing expedition". My attention was drawn by counsel for the plaintiff to what was said by Owen J in Associated Dominions Assurance Society Pty Limited v Fairfax & Sons Pty Limited (1955) 72 WN (NSW) 250 at 254:

"…whether a particular expedition is a mere "fishing expedition" depends upon the meaning of that phrase. A "fishing expedition" in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not."

14 The plaintiff's counsel argues that any secondary basis of relevance that the plaintiff may have failed to produce all necessary documents should be the subject of a separate notice of motion with a supporting affidavit founding that assertion. 15 Counsel for the second defendant made particular reference in oral argument to what is said to be the failure by the plaintiff to produce an application form which bears upon the agreement between the plaintiff and Mr De Simone. What is contended is that paragraph 7 bears upon whether or not such an application form exists and if it does not exist then the second defendant should be entitled to ask "why not"? 16 The plaintiff aptly describes the documents in paragraph 7 as policy documents. I am not satisfied that the documents sought in paragraph 7 are relevant to a fact in issue. In my view, paragraph 7 amounts to no more than a "fishing expedition". What the second defendant seeks to do is to discover further material which might be of assistance in its case. Accordingly it is appropriate that the plaintiff's motion succeeds and that the order sought is granted. There is insufficient material before me to justify an order for costs on an indemnity basis. Orders

17 I make the following orders: 1. I set aside paragraph 7 of the notice to produce issued by the second defendant to the plaintiff dated 15 March 2010. 2. The second defendant is to pay the plaintiff's costs of this motion on an ordinary basis. *******************************

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