O'Shanassy v Turland

The new grounds for challenge to the apparent relevance

1. The plaintiff submits that the subpoena fails the "apparent relevance" test for "legitimate forensic purpose" as set out in Blacktown for the following further reasons: 1. The defendant "has not filed any evidence" (submissions, paragraph 3) and "has elected not to put any on any evidence, despite the plaintiff's requests that it do so." 2. The defendant has not provided any particulars of justification capable of supporting any claim for these documents. The plaintiff's liability to pay the fine identified in the particulars is a personal and not a company liability. This is a fishing expedition for documents which would not be relevant to any issue in the proceedings and thus inadmissible. The test for particulars of justification requires that every matter to be relied upon at trial must be set out in the particulars of truth with the precision of an indictment. 3. Even if the defendant had put on a statement and had provided full particulars, the defendant would not be permitted to rely upon any particulars of justification for any of these matters, because a defendant was only entitled to lead evidence of particulars of justification for information in the defendant's possession at the time of the matter complained of. 4. Westpac is not a party to this litigation (submissions, paragraph 5) and the plaintiff is not entitled to what amounts to an order for discovery from it. The same applies to the corporate entities.

The law

1. The test of "apparent relevance" is set out at Blacktown at [65] and [69]: "[65] It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are "apparently relevant" or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent. … [69] If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is "not sufficient", and a similar statement in Carroll at 182 that "mere relevance is not enough" may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena: "must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient."
2. It is important to identify the issues in the case to which the subpoena is directed. Mr White SC's submission that the documents could only go to the issue of justification is incorrect, as the subpoena could also go to cross-examination of the plaintiff on issues of credit: "[61] As Brereton J said in A v Z at [3], a "subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining relevant evidence." Evidence in that sense need not be admissible evidence and, as Samuels JA observed in Maddison v Goldrick at 663, documents subpoenaed for the purposes of cross-examining a witness have been treated as documents required for the purposes of evidence. This extends to cross-examination on issues of credit: see, eg, Brand at [36]; Norris v Kandiah [2007] NSWSC 1296 at [3]; and Liristis v Gadelrabb [2009] NSWSC 441 at [5] (Liristis). In Liristis, copies of the plaintiff's criminal records regarding any convictions for dishonesty, particularly perjury, and any convictions under the Oaths Act 1900 (NSW) were successfully subpoenaed in circumstances where there was evidence before the Court that an earlier conviction for perjury had been quashed but a new trial ordered; see also Lowery at [10], [54]."
3. These principles are set out in more detail in my previous judgment O'Shanassy v Turland. As these are reasons for a ruling made in a busy Defamation List, I propose to simply note that summary of the principles. Mr White SC indicated that he accepted the manner in which the legal principles were set out, but seeks to add new arguments for denying access.
4. I have set out each of Mr White SC's new grounds of argument in some detail, as this issue is likely to be raised again by him at the imminent jury trial.

Failure of the defendant to file evidence

1. It has long been a feature of common law defamation trials that oral evidence is the general starting position unless either party makes an application for statements, as the many authorities set out in Martrat Pty Limited trading as Huxley Hill and Associates v Murphy [2020] NSWDC 1 at [36] et passim confirm.
2. As is noted in Ritchie's Uniform Civil Procedure NSW at [31.4.5], requirements for statements do not apply to defamation actions. While Practice Note SC CL 1 in the Supreme Court of New South Wales does apply, this renders the issue of statements, or other forms of written evidence, a matter for express application. As a matter of general practice, the same procedure applies in this court as well. Neither party has made any application to the court of the kind that was sought in Martrat Pty Limited trading as Huxley Hill and Associates v Murphy or made any timetabled "election" in respect of the form of evidence either by affidavit or statement.
3. As is set out in Martrat Pty Limited trading as Huxley Hill and Associates v Murphy, special care is taken in this court in relation to orders for statements or affidavits as a result of what occurred in Murray v Raynor [2019] NSWCA 274. Any application for statements, affidavit evidence or written evidence summary would have met with careful consideration of the orders to be made including special requirements for the signing of such statements of the kind made by Campbell J in Balzola v Passas [2018] NSWSC 1948.
4. An additional issue for consideration, if an order for statements or affidavits had been made, is that this is a jury trial. Orders for statements in jury defamation trials are rare, as is noted in Martrat Pty Limited trading as Huxley Hill and Associates v Murphy at [35].
5. This is not just the situation in New South Wales. The same caution about the use of statements in defamation trials, especially jury trials, because of the potential for trial management problems, such as the potentiality of a further set of witness statements and/or when to deal with objections (Ives v The State of Western Australia [No 7] [2013] WASC 62 at [37]ff; Walter v Buckeridge [No 3] [2010] WASC 68 at [17]) .
6. Mr White's submission that the defendant "has not filed any evidence" (paragraph 3) cannot, in those circumstances, be a factor relevant to his entitlement to access to these documents under subpoena. Nor would such a submission, if made by Mr Smartt to me when I heard argument in 2021 in O'Shanassy v Turland, have been a factor relevant to the rulings that I made in that judgment.

The defendant's particulars do not support the issuing of this subpoena

1. The first point Mr Sibtain SC makes is that the documents sought go to a number of issues, of which the particulars of truth is but one.
2. First, as was the case in O'Shanassy v Turland, the documents are made relevant by reason of the plaintiff's plea that knowledge of the falsity of the imputations aggravated his hurt to feelings. In Della Bosca v Arena [1999] NSWSC 1057 at [14(f)], Levine J pointed out that a plea of this kind "raises an 'issue' in the proceedings", citing Tabe v Amalgamated Television Services Pty Ltd (1987) A Def R 50,025. Production of documents relevant to falsity, not only on subpoena but also on discovery, will accordingly be required in order to meet this 'issue" in the proceedings.
3. Second, as is noted in Blacktown at [69] - [70], apparent relevance can be shown if the documents go to cross-examination as to credit.
4. I am, however, satisfied that the issue of account signatories and transactions on corporate entities are in fact relevant to the defendant's particularisation of the plaintiff's capacity to pay a fine issued to him. It is not to the point that the subpoena seeks information about companies as opposed to the plaintiff personally; it would be disingenuous to assert that a person's financial capacity can be ascertained solely in relation to assets in their name personally. It is not in dispute that the identities of these companies as connected to the plaintiff is clear from the interrogatories answered by him.
5. This brings me to the next submission made by Mr White SC, namely that the particulars do not set out in detail, with the precision as in an indictment, every fact and matter to be put to the plaintiff at the trial and, in particular, none of the facts and matters arising or likely to arise in relation to the subpoena the subject of this application.
6. The phrase "precision as in an indictment", employed by Hunt J in Sims v Wran [1984] 1 NSWLR 317 at 328E, is a term of some antiquity (Hickinbotham v Leach (1842) 10 M & W 361; 152 ER 510, per Alderson B at 510.9; Zierenberg v Labouchere [1893] 2 QB 183 at 186; Wooton v Sievier [1913] 3 KB 499 at 508). Modern interpretation of this requirement has been tempered by the greater ease with which information in litigation is obtained (Crosby v Kelly [2013] FCA 1343 at [33]). In Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 at [12], McCallum J stated: "That expression ("with the same precision as in an indictment") is one which is capable of being misunderstood. It is a requirement of specificity rather than one going to the amount of information to be provided. As I observed during argument, the amount of detail in an indictment is often spare but the specificity provided should be such as to put an accused person on notice of the Crown case as to each element of the offence with which he or she is charged."
7. Particulars are not evidence. In Hayson v John Fairfax Publication Pty Limited [2007] NSWCA 376 at [20], Hodgson JA noted that the full effect of evidence led within particulars had to be seen in this context: "…However, the particulars do not themselves indicate the outer limits of what may be proved. They indicate, in effect, topics on which evidence may be led. But the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate."
8. According to Barnet Jade, Hodgson JA's statement has been cited with approval 20 times, not only recently in the Federal Court of Australia (Hun v Aljazeera International (Malaysia) Sdn BHD (No 3) [2024] FCA 1261 at [10], Winn v Thompson [2024] FCA 358 at [3], Blaylock-Rayner v Seven Network (Operations) Limited [2023] FCA 1026 at [87]) but also in courts around Australia (Agustin-Bunch v Smith (No 2) [2022] VSC 290 at [22], Granitto v Gostelow [2018] WASC 242 at 13]).
9. The issues in these proceedings are not confined by references in the particulars to the plaintiff owning or having use of expensive motor vehicles, but include his financial position more generally, including his ability to pay the fine and legal costs. The structuring of his financial affairs and his access to funds, including funds from corporate entities associated with him, are matters which are well within the category of being apparently relevant (Roberts-Smith v Fairfax Media Publications Pty Ltd (No 42) (2023) 417 ALR 859; [2023] FCA 750 at [27]).
10. Mr White SC sought to use particulars of identification as an analogy. Different sets of particulars are required for different aspects of defamation actions. In determining whether particulars are sufficiently precise, it would be erroneous to use particulars of identification as an example. Such particulars are, by definition, extremely limited and bear no comparison to particulars of justification.
11. Although these arguments were put to me by Mr White SC as being new and as being a submission not made by Mr Smartt in the 2021 subpoena application (the inference being that I would have come to a different opinion), they were implicit in the submissions I received from him, and dealt with as part of my ruling.

Time limitations on the truth defence

1. Mr White SC next argues that a submission should have been put to me that the defendant was not entitled to seek information on subpoena because a defendant who pleads a justification defence must do so only on the basis of information in their position when the defence is delivered. Without that evidence, a defendant should not be permitted to use compulsory processes of the court such as subpoenae to obtain documents to which it was not, for this reason, entitled. He specifically referred to Hun v Aljazeera International (Malaysia) Sdn BHD (No 3) [2024] FCA 1261 at [14] - [15]: "[14] The applicant is correct to submit that a striking feature of the present case is the conspicuous absence in the respondents' particulars of justification of any allegation about what the applicant actually did, when he did it, or how he knew about any of the matters alleged insofar as he is said to be complicit in the relevant (very serious) conduct: cf Wing v ABC at [107]. There are no direct allegations of material fact made in relation to any such conduct by the applicant. [15] It is also relevant in the present context, as the applicant observes, that a respondent who pleads a justification defence must do so on the basis of the information in their possession when the defence is delivered and, if the defence is improperly pleaded, the defendant should not be permitted to invoke the compulsive processes of the court in order to fish for documents or information which might support a proper justification plea: Yorkshire Provident Life Assurance Company v Gilbert & Rivington [1895] 2 QB 148 at 153-4; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254 (Owen J); Rush at [172]; Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 at [40] (Kenneth Martin J); ABC v Wing at [139]-[140]. If a respondent says they are unable to plead the necessary facts without the benefit of discovery or subpoenas then the plea of justification cannot be maintained: Zierenberg v Labouchere [1892] 2 QB 183 at 188-9. This is not to deny the right to augment, in an appropriate case; but the present case is not, in my assessment, one where all the respondents have sought to do is augment a properly pleaded justification defence."
2. First, this is not a case where the defence is "improperly pleaded". There is no challenge to the defence as pleaded. Nor has there been a failure to provide any particulars of the kind explained as necessary in Zierenberg v Labouchere. Nor is the evidence the defendant relies for these particulars inadmissible or otherwise the source of controversy; the conviction material may all be tendered pursuant to s 42 of the Act. The defendant is entitled, as part of the proof, once he has crossed this threshold, to seek not only proof of matters outside the matter complained of (Sims v Wran at 328), but also to rely on evidence of events occurring both before and after the publication: Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (2nd ed) at [10-82], citing Maisel at 342 and Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 at [53].
3. Nor is it necessary that the facts relied upon are known, or even in existence, at the time the publication took place. As Lord Denning MR stated in Cohen v Daily Telegraph Ltd [1968] 1 WLR 916 at 919, "if a libel accuses a man of being a 'scoundrel', the particulars of justification can include facts which show him to be a scoundrel, whether they occurred before or after the publication."
4. Second, the Full Court in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; [2019] FCAFC 125 at [140] did not say that a defendant "must" restrict the particulars on the basis of information in his/her possession at the time of when the defence is delivered". "However, as other authorities cited by Wigney J in Rush v Nationwide News Pty Ltd make clear, proof of a defence of justification which has a sufficiently pleaded underlying factual basis may be augmented after invoking processes of discovery and production of documents by subpoena: Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 at [40] (Kenneth Martin J); Pahuja v TCN Channel Nine (No. 2) [2016] NSWSC 1074 at [19] (McCallum J). Further, nothing said in Zierenberg v Labouchere should be understood as denying to a respondent the ability to apply on proper material for leave to amend a defence when that application is made at the earliest opportunity after the material has become available. The outcome of any such application to amend will turn on the circumstance of the individual case."
5. Nor do the other authorities referred to by McEvoy J support a restriction of the justification defence to information in the defendant's possession "when the defence is delivered" (at [15]). The other judgments listed at [15] by McEvoy J are listed by Kenneth Martin J in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 at [40] as "interesting cases starting back in the 1890s", but his Honour rejected the plaintiff's contention that truth particulars should be "frozen in time" (at [38]) and went on to state: "[40] There must exist an underlying factual base to support the plea as it is made. But that does not mean a provided fact base which is sufficient cannot be augmented, to be proved at a trial, after properly invoking the forensic processes of the court. An example of this is found in Yorkshire Provident, which concerned a plea of an insurance company not meeting claims by its clients. … [47] This case is not analogous to the old case authorities or subsequent decisions of this court referred to in argument, where a defendant puts up nothing, then seeks to fish around for some basis to support a plea of justification. Here there is established, in fact, a health inspection and then an event of closure of the café. … [53]…An augmentation to particulars is a common scenario in commercial litigation, even in defamation actions. It simply means that as more precise information comes to hand, the precision of the particulars is magnified. There is nothing unusual in that. It assists the trial process." [Emphasis added]
6. The challenge made by the plaintiff to the defendant's right to inspect documents produced under subpoena was accordingly dismissed by Kenneth Martin J. The same should be the case here. The defence of justification should not be able to be trumped by technicalities of this pedantic kind. It is the keystone of freedom of speech and there is a need to maintain public confidence (Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98 at [51(7)] and [76] - [81]) in the legal system for those hungry for justice as well as democracy.
7. The plaintiff in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd did challenge the adequacy of the particulars of justification, but without success. The defendant in these proceedings has supplied particulars that are unchallenged and in addition can tender information about conviction and penalty under s 42 of the Act.

Westpac and the corporate entities are not parties to the litigation

1. The fact that Westpac is not a party to this litigation is irrelevant to the determination of the present application. Similarly, the fact that the corporate entities associated with the financial records produced by and sought from Westpac are not parties to the proceedings is also irrelevant and overlooks their connection to the plaintiff and his financial position at the relevant time.
2. If the plaintiff's objection is that the subpoena amounts to a form of discovery against a non-party, no objection has been taken by Westpac and there is no submission that the subpoena is oppressive.
3. As to the corporations named, it is not a prerequisite that they be parties to the litigation. Nor is it necessary that the pleadings and particulars include specific reference to transactions of these entities or information about the signatories to the accounts of those entities (plaintiff's submissions, [13]-[16]).

Conclusions

1. All of the new grounds put before me by Mr White SC fail and, for the same reasons as those put before me in the 2021 subpoena argument, the plaintiff's application should be dismissed and access granted.
2. It was for these reasons that I made orders accordingly.

Costs

1. Mr White SC sought a timetable for submissions on costs, which he considered could not be dealt with until these reasons were provided. Mr Sibtain SC submitted that a costs order should be made in the defendant's favour.
2. In view of the imminence of the trial, I have instead reserved costs.

Orders 1. General access to packet S-19, being the documents produced by Westpac to subpoena issued on 18 December 2024. 2. Costs reserved, with liberty to apply. 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: 24 February 2025