McLachlan v Whelan Browne [2019] NSWSC 514

McLachlan v Whelan Browne [2019] NSWSC 514

The subpoenas were not, on their face, oppressive and otherwise had sufficient apparent relevance to be allowed, but some wording and temporal scope required correction. The phrase "and/or evidencing" could, in its technical sense, require a value judgment by recipients and was unnecessary because it was narrower than "referring to"; paragraph 3 was confined to telephone records, being metadata, between 1 October 2017 and 1 February 2018. The terms "assaulted" and "sexually harassed" were to be read in their ordinary English meaning and did not justify setting aside the subpoenas.

Jurisdiction
Australia
Judgment Date
07 May 2019
Procedural Posture
Defamation Proceedings / Motions to Set Aside Subpoenas to Produce Documents And/or Records
Outcome
Motions setting aside subpoenas dismissed, with amendments to subpoena terms and costs ordered against the Applicants.
Legal Topics
['subpoenas' 'objection to Subpoenas' 'legitimate Forensic Purpose' 'adjectival Relevance' 'fishing' 'oppression' 'metadata']
['civil Procedure' 'defamation' 'evidence'] ['subpoenas' 'objection to Subpoenas' 'legitimate Forensic Purpose' 'adjectival Relevance' 'fishing' 'oppression' 'metadata']

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Procedural Posture

Defamation Proceedings / Motions to Set Aside Subpoenas to Produce Documents And/or Records

Legal Issues

  1. 1 ['Whether the subpoenas, in whole or in part, should be set aside as tantamount to discovery, lacking clarity, lacking adjectival relevance, fishing, or oppressive.' 'Whether subpoena wording including "referring to and/or evidencing" required an impermissible value judgment by subpoena recipients.' 'Whether the terms "assaulted" and "sexually harassed" made the subpoenas objectionable.' 'Whether the period and scope of telephone records sought were adjectivally relevant.']

Ratio Decidendi

The subpoenas were not, on their face, oppressive and otherwise had sufficient apparent relevance to be allowed, but some wording and temporal scope required correction. The phrase "and/or evidencing" could, in its technical sense, require a value judgment by recipients and was unnecessary because it was narrower than "referring to"; paragraph 3 was confined to telephone records, being metadata, between 1 October 2017 and 1 February 2018. The terms "assaulted" and "sexually harassed" were to be read in their ordinary English meaning and did not justify setting aside the subpoenas.

Court Disposition

Motions setting aside subpoenas dismissed, with amendments to subpoena terms and costs ordered against the Applicants.

Orders

  • ['Motions setting aside subpoenas dismissed.' 'In relation to all subpoenas except to Tracey Spicer, subpoena paragraph 1 amended by deleting words "and/or evidencing".' 'In relation to all subpoenas except to Tracey Spicer, subpoena paragraph 2 allowed.' 'In relation to all subpoenas except to Tracey Spicer,...