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Orders Sought for the Production of Documents

3. There are four categories of documents sought by the motion. They are:

4. Category 1: incident reports related to the admission of the Plaintiffs’ daughter between 16-19 April 2019.

5. Category 2: Correspondence between the Clinical Excellence Commission (“CEC”) and the Defendant on 10 December 2021 related to the transfer of the request for information under Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”).

6. Category 3: correspondence between the Defendant and the CEC in relation to the transfer of the GIPA Act application and internal correspondence about that transfer.

7. Category 4: the “final medical report” authored by Dr Marks.

8. The defendant’s simple response to the order as relates to Category 1 is that they have no responsive documents. The defendant’s solicitor gave evidence by way of affidavit to this effect. That affidavit sets out in detail the searches that were conducted, including the solicitor herself watching the search be performed. There was no challenge to this sworn evidence. I refuse to make an order for the production of documents that appear not to exist.

9. The documents sought in Category 2 are functionally identical to Categories 7A, B and C I dealt with in Onakoya (No 4*)*. I refused to order their production because I was not satisfied that a legitimate forensic purpose was made out. Nothing before me on this application would lead me to a different conclusion.

10. Category 3 relates to the same subject matter as Category 2 but with even broader application to internal correspondence. Again, no legitimate forensic purpose has been established. More broadly, however, I would also make note of the fact that the original correspondence by the CEC on 10 December 2021 contains a word which characterises the nature of the inquiry undertaken by the CEC: “preliminary”. The very nature of a “preliminary review” is that it is done at a different level of depth to a final review. It is not uncommon that views change between those two reviews. More pertinently, a preliminary review suggesting the documents may be in the possession of the defendant is not inconsistent with the defendant’s response that they are not. Given the evidence of the defendant’s solicitor, I am not satisfied that the plaintiffs have established a likelihood that the documents are in the possession of the defendant and are being withheld.

11. Category 4 relates to an issue that has become a focal point of the dispute between the parties: the existence of a ‘final medical report’. This is because the central document in this case is Dr Marks’s “update report” of 14 August 2019. In short compass, the plaintiffs contend that the defendant must have a ‘final medical report’ authored by Dr Marks that they are withholding. They chiefly point to the metadata of the ‘update report’; in which is there is an unexplained discrepancy between ‘date created’ on the metadata and time that the report was sent by email. Their argument is because the document’s metadata indicates it was created after the email was sent, that document could not be the one that was sent, and so another report (the ‘final medical report’) must exist. I accept that this discrepancy is so far unexplained. But one’s experience of life suggests that there may be many innocent explanations for this. The defendant’s reply is that no such document exists – there are two reports only: an interim medical report, and the update medical report.

12. As I have observed on several occasions during the numerous times this matter has been before me, this is a now a matter for trial. The defendant simply says it does not exist. I will not make an order that is unable to be compiled with. As I have also observed, if, when this matter gets to trial, the defendant produces the final medical report and seeks to rely upon it, that would be a matter that will strike at the heart of the defendant’s legal representatives’ professional obligations.

13. There are some matters I wish to record in relation to the orders sought for the production of documents. First, it is apparent to me that the first plaintiff does not agree with my decisions in Onakoya (No 4) and Onakoya (No 5). He does not have to agree with them, but he is bound by them. In the latter of those judgments, I entertained an application under r 36.15 of Uniform Civil Procedure Rules 2005 (NSW) where he sought to set aside my refusal to order the production of documents. Finality of litigation, even of interlocutory rulings to an extent, is of constitutional significance. I wish to make it clear that absent some exceptional circumstances, further agitation on this point will not be permitted.

14. Second, while allowance is made for the plaintiffs being self-represented and trying to negotiate the very complicated nature of defamation litigation, that does not give them any advantage. This litigation is clearly of personal, and emotional, importance to the plaintiffs. That is one reason why I have suggested, on many occasions, that the plaintiffs seek the benefit of legal advice. Clearly, the first plaintiff is an intelligent man, but it is very possible that his emotional attachment has clouded his judgment. The defendant has clearly gone to significant cost to defend this litigation and being compelled to defend applications of the same type over and over again is rapidly becoming unfair to them.

15. Third, this matter, which has existed as a standalone defamation proceeding since 2023, is set down for hearing at the end of this year. The preservation of that hearing date is important. Constant interlocutory matters risk detracting from the preparation of this matter for final determination.

Leave to File Subpoenas

12. The order sought by this Notice of Motion seeks, in effect, plenary leave to issue subpoenas. The reasons why a self-represented litigant require leave to issue subpoenas is well known and self-evident. The reasons why they should not be given carte blanche are similarly trite.

13. The day after this Notice of Motion was filed, I made procedural orders in the conduct of the Defamation List in this matter. One of which gave the Plaintiffs leave to file applications to issue subpoenas with my Chambers, which he was since exercised. I will not grant leave at large.

Adverse Inference Direction

14. The Plaintiffs seek that I make an order drawing an adverse inference at the hearing of this matter if certain documents are not produced.

15. This is a manifestly inappropriate order. Such an inference can only be drawn once the trial judge has had the benefit of all of the evidence and considered what evidence was or was not available to be given at the hearing by which party. The Plaintiffs can make submissions about what inferences they seek at the hearing of this matter.

Orders

16. I will dismiss the Notice of Motion. There being no reason why costs should not follow the event, I will award the Defendant its costs of the motion. My orders are as follows:

17. The Notice of Motion filed 29 July 2026 is dismissed.

18. The Plaintiffs are to pay the Defendant’s costs of the motion.

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