Skrijel v Mengler [2003] VSC 55

Supreme Court of Victoria|2003-03-03|Before: NETTLE J

Two subpoenas for production of documents directed to the Australian Government Solicitor, dated 25 and 26 February 2003 respectively, have been called on to be answered and the production of the documents listed in the schedules to both subpoenas is opposed by Mr Walters SC on behalf of the second defendant.

Dealing first with the subpoena dated 25 February 2003, it is submitted on behalf of the second defendant that the documents described in paragraph 1 of the schedule - namely, original Victoria Police video tapes, 735/85 tapes 1, 2 and 3 - have already been the subject of an order for specific discovery and it has been complied with.

I accept that submission. I do not propose to make any further order at this stage of the proceeding for the production of the tapes by the second defendant.

It is submitted on behalf of the second defendant that it ought not be required to produce the documents listed in paragraph 2 in the schedule until the plaintiff has demonstrated a legitimate forensic purpose for the production of the documents and that, as the matter stands, the requirement for production ought be seen as too broad and in the nature of fishing or, as in effect, requiring an exercise in discovery.

I do not accept that submission. I consider that the test to be applied in determining whether documents may be the subject of a subpoena duces tecum is whether, having regard to the issues as defined in the pleadings, the documents are either directly relevant to matters in issue or might come within the second leg of the test in Peruvian Guano[1] as documents that could lead the plaintiff upon a path of inquiry, either to advance his own case or to impeach the case which is made against him[2]. I will require the production of the documents which are listed in paragraph 2 in the schedule to the subpoena of 25 February 2003.

The documents described in the third paragraph of the schedule are: documents in respect of the National Crime Authority's white Falcon utility, registration RBL-823 referred to in the plaintiff's letter concerning burglary and trespass, faxed to the National Crime Authority on 27 November 1995, and otherwise described as therein mentioned.

It is submitted on behalf of the second defendant that there is no apparent legitimate forensic purpose for the production of those documents in this proceeding, for they can in no way be seen to bear upon the matters in issue or lead the plaintiff upon a path of inquiry to advance his case or to impeach the case of the second defendant.

As the matter stands for the time being, I accept that submission. On the basis of the pleadings and the evidence and the opening to this point, I do not consider that it has yet been made out that the documents described in paragraph 3 of the schedule to the subpoena of 25 February 2003 are documents which are within the ambit of the class of documents that may be made the subject of a subpoena.

I turn to the subpoena dated 26 February 2003. The first category of documents described in the schedule to that subpoena is: three original tape recordings taken from private investigator, Mr Norm Matthews by NCA Investigator Sergeant Ron Iddles on 25 September 1985.

There has already this day been tendered into evidence a copy of a receipt issued by Sergeant Ron Iddles upon those tapes being produced to him, which suggests that they should be in the possession or power of the second defendant. I have, however, been told by counsel on behalf of the second defendant that although extensive searches have been made, the tapes can no longer be found. I am also told by counsel on behalf of the second defendant that a Master of the court refused a previous application made on behalf of the plaintiff for an order for specific discovery of the tapes on the grounds that the Master was not persuaded that the documents came within the test of relevance.

With all respect to the Master, in my opinion the documents are relevant. They go to the questions of honest and reasonable cause and malice. I propose to order that the second defendant make an affidavit of specific discovery as to the documents described in Category 1.

The documents described in Category 2 in the schedule are: all records relating to the movements of the tapes described in Category 1 from the time they were taken from Mr Matthews by Sergeant Iddles. The objection which is taken to their production is similar to that advanced in opposition to production of Category 1. For the reasons already given with respect to Category 1, I consider the documents described in Category 2 are relevant for the purposes of a subpoena duces tecum, and I propose to order that they be produced.

Opposition is raised to the production of the documents described in Category 3 in the subpoena of 26 February 2003 on the basis that, as with the documents described in Category 3 in the schedule to the subpoena of 25 February 2003, it cannot be seen how there is a legitimate forensic purpose for production. I am for the time being persuaded by that submission.

I do not consider that it has yet been made out in this proceeding that there is a legitimate forensic basis for seeking the production of the documents or, more precisely, it has not been made apparent that the documents relate to a matter in issue or might lead upon a path of inquiry which would enable the plaintiff to advance his own case with respect to the issues or impeach the case of the second defendant.

That is not to say that the relevance might not emerge at a later point in the trial. It is to say, however, that for the time being I am not disposed to order the production of those documents.

[1] Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 62 and 63

[2] see Waind v Hill [1978]1 NSWLR 372 at 383

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