Hibbert v Nationwide News Pty Ltd (No. 3) [2016] NSWDC 242

Hibbert v Nationwide News Pty Ltd (No. 3) [2016] NSWDC 242

The producing party had not shown sufficient compliance with the subpoena because its searches were inadequate, relevant inquiries had not been made of persons likely to hold or know about responsive documents, explanations for non-production had shifted, documents recently produced indicated that further responsive documents were likely to exist, and the asserted absence of Board records was not an acceptable explanation without further evidence. The proper orders were further searches and inquiries, an affidavit concerning missing records if necessary, and an affidavit supporting the claim of legal professional privilege.

Jurisdiction
Australia
Judgment Date
13 October 2016
Procedural Posture
Civil Defamation Proceedings / Interlocutory Application for Compliance With a Subpoena for Production and Examination in Relation to Asserted Non Compliance
Outcome
Orders made requiring further searches and inquiries, affidavits as to missing records and legal professional privilege, costs reserved, and the defendants' application stood over for further directions.
Legal Topics
['subpoena for Production to Third Party' 'compliance With Subpoena' 'examination Under S 68 Civil Procedure Act 2005 (nsw)' 'further Searches for Documents' 'missing Company Records' 'claim for Legal Professional Privilege']
['civil Procedure' 'evidence' 'subpoenas' 'legal Professional Privilege'] ['subpoena for Production to Third Party' 'compliance With Subpoena' 'examination Under S 68 Civil Procedure Act 2005 (nsw)' 'further Searches for Documents' 'missing Company Records' 'claim for Legal Professional Privilege']

Case Brief

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Procedural Posture

Civil Defamation Proceedings / Interlocutory Application for Compliance With a Subpoena for Production and Examination in Relation to Asserted Non Compliance

Legal Issues

  1. 1 ["Whether Manly-Warringah Sea Eagles Limited had failed to comply with the defendants' subpoena issued 28 April 2016 in relation to categories 2, 3, 5(k), 9, 11 and 12." 'What orders should be made if non-compliance with the subpoena was established.' 'Whether further searches and inquiries should be required in relation to documents concerning Stephen Dank, specified supplements, ASADA, the ARLC and/or the NRL, and Board records.' "Whether an affidavit should be filed setting out the basis for the claim of legal professional privilege over Mr Unsworth's 2013 report to the Board."]

Ratio Decidendi

The producing party had not shown sufficient compliance with the subpoena because its searches were inadequate, relevant inquiries had not been made of persons likely to hold or know about responsive documents, explanations for non-production had shifted, documents recently produced indicated that further responsive documents were likely to exist, and the asserted absence of Board records was not an acceptable explanation without further evidence. The proper orders were further searches and inquiries, an affidavit concerning missing records if necessary, and an affidavit supporting the claim of legal professional privilege.

Court Disposition

Orders made requiring further searches and inquiries, affidavits as to missing records and legal professional privilege, costs reserved, and the defendants' application stood over for further directions.

Orders

  • ['The producing party by its servants or agents is to take all steps and make all necessary inquiries in relation to documents sought in categories 2, 3, 5(k), 9, 11 and 12 from specified relevant servants, agents and Board members, and if records are asserted to be missing the producing party is to file and serve...