Roberts-Smith v Fairfax Media Publications Pty Limited (No 42) [2023] FCA 750

Roberts-Smith v Fairfax Media Publications Pty Limited (No 42) [2023] FCA 750

Subject to specific exclusions, the subpoenas had a legitimate forensic purpose because SNOL's and ACE's part in the litigation was relevant to the respondents' third party costs application, and documents showing attendances, communications, advice records, time entries or invoices could possibly throw light on the degree and nature of their involvement. The applicants' submissions set the relevance threshold too high. The Court also rejected the proposed temporal limitations because there was no clear separation between SNOL and ACE, particularly in light of clause 7 of the ACE agreement, and documents after 27 July 2022 could possibly throw light on the issues. Any legal professional...

Jurisdiction
Australia
Judgment Date
05 July 2023
Procedural Posture
Interlocutory Application Under R 24.15 of the Federal Court Rules 2011 (cth) to Set Aside Subpoenas to Produce Documents / After Dismissal of the Substantive Defamation Proceedings and Before Determination of Respondents' Applications for Indemnity Costs and Third Party Costs Orders
Outcome
Grounds for setting aside the subpoenas were rejected, subject to the subpoenas being confined by specified exclusions; parties were to be heard as to the appropriate order.
Legal Topics
['application to Set Aside Subpoenas to Produce Documents' 'legitimate Forensic Purpose' 'third Party Costs Orders' 'non Party Funding of Litigation' 'legal Professional Privilege']
['practice and Procedure' 'costs' 'subpoenas' 'defamation'] ['application to Set Aside Subpoenas to Produce Documents' 'legitimate Forensic Purpose' 'third Party Costs Orders' 'non Party Funding of Litigation' 'legal Professional Privilege']

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Procedural Posture

Interlocutory Application Under R 24.15 of the Federal Court Rules 2011 (cth) to Set Aside Subpoenas to Produce Documents / After Dismissal of the Substantive Defamation Proceedings and Before Determination of Respondents' Applications for Indemnity Costs and Third Party Costs Orders

Legal Issues

  1. 1 ["Whether subpoenas issued to Seven Network (Operations) Limited, Australian Capital Equity Pty Ltd, Herbert Smith Freehills and Addisons had a legitimate forensic purpose in relation to the respondents' proposed third party costs application." 'Whether the subpoenas should be set aside as oppressive, an abuse of process, or fishing.' 'Whether the subpoenas should be confined by excluding documents relating to earlier subpoenas, foreshadowed third party costs correspondence, and news broadcasting advice.' 'Whether the subpoenas should be limited to particular time periods, including periods corresponding to SNOL and ACE funding or ending on the last day of the hearing.' 'Whether legal professional privilege concerning documents responsive to the subpoenas should be determined at this stage.']

Ratio Decidendi

Subject to specific exclusions, the subpoenas had a legitimate forensic purpose because SNOL's and ACE's part in the litigation was relevant to the respondents' third party costs application, and documents showing attendances, communications, advice records, time entries or invoices could possibly throw light on the degree and nature of their involvement. The applicants' submissions set the relevance threshold too high. The Court also rejected the proposed temporal limitations because there was no clear separation between SNOL and ACE, particularly in light of clause 7 of the ACE agreement, and documents after 27 July 2022 could possibly throw light on the issues. Any legal professional...

Court Disposition

Grounds for setting aside the subpoenas were rejected, subject to the subpoenas being confined by specified exclusions; parties were to be heard as to the appropriate order.

Orders

  • ['The parties be heard as to the appropriate order in light of these reasons.' 'The subpoenas, including the subpoena addressed to Addisons, should be confined by excluding documents relating to compliance with subpoenas previously issued in the proceedings.' 'The subpoenas should be confined by excluding documents...