British American Tobacco Australia Services v Fairfax & Anor [2006] NSWSC 1328

British American Tobacco Australia Services v Fairfax & Anor [2006] NSWSC 1328

Paragraphs 1 to 3 of the notices to produce lacked apparent relevance because the plaintiffs' internal reasons and reasoning process for commencing the proceedings did not bear on the objective questions of confidentiality, privilege, or whether any confidentiality should be enforced. Paragraphs 4 to 6, and the corresponding subpoena paragraphs, were sufficiently connected to communications about protection of the information but required limitation to the information the subject of the summons. Paragraph 7 did not lack apparent relevance because it was on the cards that communications following the Priest email might contain admissions of past misconduct relevant to the defendants'...

Jurisdiction
Australia
Judgment Date
09 November 2006
Procedural Posture
Equity Proceedings Concerning Notices to Produce and Subpoenas for Production of Documents / Interlocutory Notices of Motion to Set Aside Subpoenas and Notices to Produce
Outcome
Parts of the notices to produce were set aside, and orders were made limiting the extent of compliance required with other parts and the subpoena to Clayton Utz.
Legal Topics
['subpoenas' 'notices to Produce' 'setting Aside Subpoenas and Notices to Produce' 'apparent Relevance' 'confidential Information' 'public Interest Exception' 'iniquity' 'legal Professional Privilege']
['evidence' 'civil Procedure' 'equity' 'confidential Information' 'legal Professional Privilege'] ['subpoenas' 'notices to Produce' 'setting Aside Subpoenas and Notices to Produce' 'apparent Relevance' 'confidential Information' 'public Interest Exception' 'iniquity' 'legal Professional Privilege']

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Procedural Posture

Equity Proceedings Concerning Notices to Produce and Subpoenas for Production of Documents / Interlocutory Notices of Motion to Set Aside Subpoenas and Notices to Produce

Legal Issues

  1. 1 ['Whether the subpoenas and notices to produce should be set aside as an abuse of process because the documents sought lacked apparent relevance to the issues in the proceedings.' "Whether documents concerning the plaintiffs' internal decision-making and reasons for commencing the proceedings had apparent relevance." 'Whether communications between the plaintiffs and Clayton Utz about protection of privileged or confidential information had apparent relevance and required limitation.' 'Whether communications between Mallesons Stephen Jaques and the plaintiffs or their solicitors following the Priest email had apparent relevance.' 'Whether paragraph 8 of the notice to produce should be modified to avoid objection to the descriptive wording of the documents sought.']

Ratio Decidendi

Paragraphs 1 to 3 of the notices to produce lacked apparent relevance because the plaintiffs' internal reasons and reasoning process for commencing the proceedings did not bear on the objective questions of confidentiality, privilege, or whether any confidentiality should be enforced. Paragraphs 4 to 6, and the corresponding subpoena paragraphs, were sufficiently connected to communications about protection of the information but required limitation to the information the subject of the summons. Paragraph 7 did not lack apparent relevance because it was on the cards that communications following the Priest email might contain admissions of past misconduct relevant to the defendants'...

Court Disposition

Parts of the notices to produce were set aside, and orders were made limiting the extent of compliance required with other parts and the subpoena to Clayton Utz.

Orders

  • ['Order that paragraphs 1, 2 and 3 of the notice to produce dated 7 November 2006 be set aside.' 'Order that it will be sufficient compliance with paragraph 5 of the notice to produce for the plaintiff to produce the documents described therein on the basis that the words "the plaintiff\'s privileged or confidential...