Eppinga v Kalil & Anor [2021] NSWDC 549

Eppinga v Kalil & Anor [2021] NSWDC 549

The subpoena was not set aside because it was clear, had already been complied with without objection, the producing party had not been notified of the late challenge, and the disciplinary material was potentially relevant to qualified privilege, reply to attack, malice and credit. The impugned Reply particular was not struck out because prior disciplinary matters were sufficiently connected to the pleaded malice and reply to attack issues. Discovery was ordered only for categories found relevant or narrowed to relevance, and the additional discovery sought concerning solicitor-client correspondence was refused because no such correspondence was shown, it would in any event be privileged,...

Jurisdiction
Australia
Judgment Date
14 October 2021
Procedural Posture
Civil Defamation Cross Claim / Interlocutory Applications in the Defamation List Concerning Subpoena, Strike Out, Discovery, Interrogatories and Listing
Outcome
Dr and Mrs Kalil's applications to set aside the subpoena, strike out paragraph 2(e)(iii)(4) of the Reply, obtain first access to subpoenaed documents, and obtain additional further and better discovery were dismissed; access to subpoenaed documents was allowed to solicitors only; discovery, interrogatory and...
Legal Topics
['application to Set Aside Subpoena' 'application to Strike Out a Particular of the Reply' 'discovery Categories' 'qualified Privilege at Common Law' 'reply to Attack' 'malice' 'legal Professional Privilege' 'costs']
['defamation' 'civil Procedure'] ['application to Set Aside Subpoena' 'application to Strike Out a Particular of the Reply' 'discovery Categories' 'qualified Privilege at Common Law' 'reply to Attack' 'malice' 'legal Professional Privilege' 'costs']

Case Brief

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Procedural Posture

Civil Defamation Cross Claim / Interlocutory Applications in the Defamation List Concerning Subpoena, Strike Out, Discovery, Interrogatories and Listing

Legal Issues

  1. 1 ['Whether the subpoena to the Veterinary Board of NSW should be set aside as too wide, irrelevant or a fishing expedition.' 'Whether access to subpoenaed documents should be restricted to legal representatives.' "Whether paragraph 2(e)(iii)(4) of Ms Eppinga's Reply particularising malice should be struck out." 'Which disputed categories of documents were discoverable by each side.' "Whether Dr and Mrs Kalil should have further and better discovery of any correspondence between Mr Muriniti and Ms Eppinga concerning internet searches described in paragraph 51 of Mr Muriniti's affidavit of 8 June 2021."]

Ratio Decidendi

The subpoena was not set aside because it was clear, had already been complied with without objection, the producing party had not been notified of the late challenge, and the disciplinary material was potentially relevant to qualified privilege, reply to attack, malice and credit. The impugned Reply particular was not struck out because prior disciplinary matters were sufficiently connected to the pleaded malice and reply to attack issues. Discovery was ordered only for categories found relevant or narrowed to relevance, and the additional discovery sought concerning solicitor-client correspondence was refused because no such correspondence was shown, it would in any event be privileged,...

Court Disposition

Dr and Mrs Kalil's applications to set aside the subpoena, strike out paragraph 2(e)(iii)(4) of the Reply, obtain first access to subpoenaed documents, and obtain additional further and better discovery were dismissed; access to subpoenaed documents was allowed to solicitors only; discovery, interrogatory and...

Orders

  • ['The application by Dr and Mrs Kalil (the defendants in the cross-claim) to set aside the subpoena to the Veterinary Board of NSW is dismissed.' 'The solicitors for both parties are to have access to the documents produced by the Veterinary Board of NSW.' 'Access is not to be given to the parties to the documents...