Consideration
16 In Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 573-575, Jordan CJ discussed the principles governing challenges to the validity of subpoenas for production of documents. The Chief Justice's reasons have been followed repeatedly. He said of a subpoena for production (duces tecum) addressed to a non-party (38 SR(NSW) at 573):
If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant: Lee v Angas [LR 2 Eq 59]; Burchard v Macfarlane [[1891] 2 QB 241 at 247]; A-G v Wilson [9 Sim 526]; Newland v Steer [13 LT 111; 13 WR 1014]. (emphasis added)
17 In Australian Competition and Consumer Commission v Shell Co of Australia Limited (1999) 161 ALR 686 at 696 [53]-[55], Cooper J distilled the following principles:
[53] A subpoena is oppressive if it requires the recipient to make fine judgments regarding the relevance of documents (Finnie v Dalglish [1982] 1 NSWLR 400; Southern Pacific Hotel Services Inc (at 718)), or if it requires a recipient to undertake a search of an excessively large amount of documents (Commissioner for Railways v Small (at 574)), or does not specify the documents with reasonable particularity: National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372; Commissioner for Railways v Small (at 574).
[54] The primary consideration is the due administration of justice and in particular this consideration manifests itself as a requirement that the parties have available to them all material relevant to the issues to be decided in the case: Southern Pacific Hotel Services Inc (at 720).
[55] In a practical sense this test was expressed by Beaumont J in Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 103, asking two questions:
1. Do the documents requested have "apparent relevance" to the issues in the proceeding? That is, does the subpoena have a legitimate forensic purpose?
2. Is the subpoena seriously and unfairly burdensome or prejudicial?
See also Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1998] FCA 1599 at 7-8. (emphasis added)
18 In Harbour Radio Pty Limited v Trad (2012) 247 CLR 31 at 48 [33], Gummow, Hayne and Bell JJ approved (with their own emphasis, italicised in the passage below) what Dixon J held in Penton v Caldwell (1945) 70 CLR 219 at 233-234, concerning the defence of qualified privilege based on a reply to an attack, namely:
The foundation of the privilege is the necessity of allowing the party attacked free scope to place his case before the body whose judgment the attacking party has sought to affect. In this instance, it is assumed to be the entire public. The purpose is to prevent the charges operating to his prejudice. It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion. If that is a question submitted to or an argument used before the body to whom the attacker has appealed and it is done bona fide for the purpose of vindication, the law will not allow the liability of the party attacked to depend on the truth or otherwise of defamatory statements he so makes by way of defence. (bold emphasis added)
19 Here, Charif's defence pleaded that the occasions of qualified privilege arose because he was "responding to an attack contained in the following series of articles published by Linton Besser and his principal or employer, the proprietors of The Sydney Morning Herald" and then listed the 21 articles. In the second last listed article, published on 19 March 2013, Mr David appeared to have given an interview to Mr Besser and was, no doubt, the source of much of the material contained in it. In some of the earlier listed articles, Mr David's name is not mentioned. In others, Charif's name is not mentioned, but that of his family is. Thunder Studios and Mr David have not sought to strike out the defence of qualified privilege based on the matters complained of being a reply to an attack perceived to have been made by them on Charif by the 21 articles.
20 The first two of the 21 articles were published on 1 September 2010. One headlined, "Secret favours greased Rocks deal" and the other headlined, "Macdonald defied cabinet to appoint his man for Middle East", were published under Mr Besser's byline. Each article contained allegations that a senior public servant had had an improper relationship with members of the Kazal family and that one of Charif's brothers, Karl Kazal, had been appointed as an honorary trade counsel to the Middle East by a former minister in the New South Wales Government, Ian Macdonald, without the authority of the then State Cabinet. While it may be possible to see these articles as constituting an attack on Mr Kazal's family and possibly him, they contain no, and there is no pleaded, connection between Mr David and anything said in either article as to how Mr David somehow might conceivably have had any involvement in its publication. The articles included references to an earlier report of the State's Independent Commission Against Corruption (ICAC) into certain dealings by members of the Kazal family with the New South Wales Government that had made findings that were not adverse to them.
21 Subsequent articles in the 21 articles developed what it is possible to infer could be understood, for the purposes of this argument at this stage of the proceeding, as an attack upon both Charif himself and, more generally, members of his family that may have included him. Indeed, in some of the articles he was named, and in others, Mr David's role in the relationship between the Kazal family, including Charif and their respective business ventures is discussed. Some of the articles appear on their face to be reports of public ICAC proceedings. For example, one article, published on 26 July 2011, was headlined "Secret trip was for job interview, inquiry told". It dealt with the senior public servant who was alleged to have had an improper relationship with the Kazal family. The article reported that that person had given evidence to ICAC about Mr David, in which he had sought to implicate Mr David in paying that witness $11,000 in cash. Ultimately, subsequent articles in the 21 articles reported that ICAC had found that cash payment originated with persons in the Kazal family.
22 The subpoenas seek all correspondence "relating to" each of the 21 articles that passed between Mr David and either of the two publishers, Fairfax or Mr Besser. There is nothing contained in Charif's pleaded defence that entitles him to issue subpoenas in such wide and imprecise terms. In effect, the addressee of each subpoena must make a judgment as to what "relates to" each of the publications in terms of any communications that he or it may have had with Mr David. The articles, in evidence, largely speak for themselves, so that in their terms they will either justify or not justify that the two publishers (Fairfax and Mr Besser) made the alleged but unspecified attack.
23 Here, Charif has sought to justify some of the imputations that Mr David complains of and also to plead other imputations of contextual truth that raise allegations of dishonesty by Mr David and Thunder Studios, which he controls. I am of opinion that the terms of each subpoena are really fishing for evidence to support an allegation that Charif has not sought to justify in his defence to the payment imputations (because, I infer, he has no basis to do so). Charif's defence pleaded that Fairfax and Mr Besser published "an attack" in the 21 articles, without specifying or suggesting anything about what the attack was or that anyone else had, or may have had, any involvement in it in order to support the making of the serious allegations in the payment imputations.
24 There is no issue raised on the pleadings or in the particulars which warrants Charif being given access to documents produced under compulsion that may or may not assist him in developing what now is merely his speculative belief that Mr David had some unspecified role to play in Fairfax' and Mr Besser's publication of the attack in all or each of the 21 articles, whatever that attack may be. No doubt, Mr David may have been a source of statements attributed in particular articles to him, some of which occurred in interviews, but other statements appear, from the terms of the articles, to have been made when Mr David was giving evidence in public during the ICAC inquiry.
25 I do not consider it to be a legitimate forensic purpose for these subpoenas to be allowed to stand, in order to explore whatever correspondence Fairfax and Mr Besser may have had with Mr David that "relates to" each of the 21 articles. As the pleading stands, including the particulars that it contains, the defence simply asserts that the 21 articles constituted a single "attack", in publications by Mr Besser and Fairfax, to which the matters complained of replied under qualified privilege. In a broad sense, reading each of the 21 articles in evidence together, one can see that Fairfax and Mr Besser were calling into question the business conduct and ethics of the Kazal family, including Charif, in their dealings with, among others, but not limited to, Mr David. However, the attack, as revealed in the articles read as a whole, involved a subject matter that became exposed in hearings before, and findings by, the ICAC, and courts in the United Arab Emirates and the Cayman Islands. The ICAC inquiry, its findings and those two court proceedings were also referred to in the matters complained of themselves.
26 This is an application by strangers to set aside subpoenas. There is no present issue about, and it is not necessary to consider, the sustainability of Charif's unchallenged pleading of reply to an attack. That issue as pleaded and particularised provides the basis for considering the justifiability of the subpoenas. The issue here is whether the subpoenas have a legitimate forensic purpose in seeking to obtain documentary evidence for use in this proceeding.
27 I accept that Mr David is not in a position to give discovery about contents of his mobile phone for the reasons set out in his affidavit of discovery, and that this circumstance may have disadvantaged Charif. However, I am of opinion that that circumstance does not provide a sufficient basis, alone or in combination with Charif's other arguments, that would allow these subpoenas to stand.
28 Documents sought in the subpoenas that simply "relate to" one or more of each of the 21 articles or all of them taken as a whole, being communications between Mr David and Mr Besser and or Fairfax, do not have apparent relevance to the issues in the proceeding: Shell 161 ALR at 696 [55]. Moreover, I am satisfied that the terms of the subpoenas amount to fishing to see whether there is any document possibly available that falls within the wide and unqualified sphere of its being "related to" each article, that might support Charif's speculative allegation that Mr David procured or was involved in the attack in the 21 articles or caused or paid for the attack to be published.
29 It is no more than mere speculation on the material before me for Charif to suggest that Mr David was responsible for any of the material that the first two of the 21 articles, dated 1 September 2010, contain. There is nothing on the face of the 21 articles, or identified by Charif in the pleaded defence or in evidence or argument, that suggests that Mr David had any connection to the procuring of their publication. Those two articles, for example, refer to press releases and the conduct of a public official that are said to have a connection to public activities of the Kazal family. Other articles involved, what appear to be, on their face, reports of proceedings in public of ICAC and other publicly available matter.
30 Counsel for Charif acknowledged that he was not able to formulate more narrowly terms for the subpoenas that would identify with precision the document or documents which he seeks that could relate to the issues in the proceeding.
31 To require Fairfax and Mr Besser now to have to review all of their documents, including if he has any, Mr Besser's mobile phone records and email records, over a period of about three years for ones that "relate to" the 21 articles would be oppressive.