Thunder Studios Inc (California) v Kazal (No 4) [2017] FCA 1571

Thunder Studios Inc (California) v Kazal (No 4) [2017] FCA 1571

The subpoenas addressed to Fairfax Media Publications Pty Limited and Linton Besser were set aside because they sought all correspondence 'relating to' 21 articles over several years, which was too broad and amounted to a fishing expedition without apparent relevance to the pleaded issues. There was no legitimate forensic purpose for compelling third party non-parties to undertake such an expansive search, especially in the absence of adequate pleading supporting the necessity of such documents.

Parties
First Applicant: Thunder Studios Inc (California); Second Applicant: Rodric Marc David; First Respondent: Charif Kazal; Second Respondent: Adam Kazal; Interested Party: Linton Besser; Interested Party: Fairfax Media Publications Pty Limited
Jurisdiction
Australia
Judgment Date
04 December 2017
Procedural Posture
Interlocutory Application / Ruling on Application to Set Aside Subpoenas
Outcome
Subpoenas set aside. Costs ordered against first respondent. Leave granted for certain procedural steps.
Legal Topics
Subpoenas, Discovery, Oppression, Qualified Privilege, Defamation, Fishing Expeditions
Practice and Procedure Subpoenas Discovery Oppression Qualified Privilege Defamation Fishing Expeditions

Case Brief

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Parties

Thunder Studios Inc (California)

First Applicant

Rodric Marc David

Second Applicant

Charif Kazal

First Respondent

Adam Kazal

Second Respondent

Linton Besser

Interested Party

Fairfax Media Publications Pty Limited

Interested Party

Procedural Posture

Interlocutory Application / Ruling on Application to Set Aside Subpoenas

Legal Issues

  1. 1 Whether subpoenas issued to third party publishers had a legitimate forensic purpose
  2. 2 Whether the documents sought were apparently relevant to the issues in the proceeding
  3. 3 Whether the terms of the subpoenas were too broad and amounted to 'fishing' for evidence

Ratio Decidendi

The subpoenas addressed to Fairfax Media Publications Pty Limited and Linton Besser were set aside because they sought all correspondence 'relating to' 21 articles over several years, which was too broad and amounted to a fishing expedition without apparent relevance to the pleaded issues. There was no legitimate forensic purpose for compelling third party non-parties to undertake such an expansive search, especially in the absence of adequate pleading supporting the necessity of such documents.

Court Disposition

Subpoenas set aside. Costs ordered against first respondent. Leave granted for certain procedural steps.

Orders

  • Each of the subpoenas addressed to Fairfax Media Publications Pty Limited and Linton Besser be set aside.
  • First respondent to bear the costs of Fairfax Media Publications Pty Limited and Linton Besser of their interlocutory application dated 3 October 2017 on a party and party basis.