Jandson Pty Ltd v Edmonds: slip rule

Jandson Pty Ltd v Edmonds [2022] NSWCA 61

The Court held (Bell CJ, Macfarlan and White JJA agreeing), refusing leave to appeal with costs, that in circumstances where a judge has or is said to have overlooked a particular argument of a party, it is open to that party pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) to draw that fact to the judge’s attention and invite him or her to address the matter, and ordinarily that will be the preferable and appropriate course to take rather than seeking to raise the matter on appeal: [16]-[20] (Bell CJ); [27] (Macfarlan JA); [28] (White JA).

Consolidated Lawyers Ltd v Abu-Mahmoud; Abu-Mahmoud v Consolidated Lawyers Ltd [2016] NSWCA 4; Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500; [2017] NSWCA 106; Crawley v Short [2009] NSWCA 410; (2009) 262 ALR 654; Nominal Defendant v Livaja [2011] NSWCA 121, considered.

The relevant tests in respect of a decision to set aside a notice to produce were considered by Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115 at in particular at [24] to [26]. On the basis of the authorities there cited, the following propositions emerge:—

· (1) The relevant test in terms of documents is whether they have “a sufficient apparent connection to justify their production or inspection”: White v Tulloch (1995) 127 FLR 105.

· (2) The test of adjectival relevance is satisfied if the material had apparent relevance and was established if the documents called for “could possibly throw light on the issues in the main case”: Trade Practices Commissioner v Arnotts Limited (1989) 21 FCR 306 per Beaumont J.

· (3) A subpoena has a legitimate forensic purpose if it appears to be “on the cards” that the documents sought will materially assist the defence in criminal proceedings: Alister v The Queen (1984) 154 CLR 404, 414 per Gibbs CJ; Regina v Saleam (1989) 16 NSWLR 14, 18.

to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose:

“ … it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will.”

Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]):

“ … the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise.”

In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have “a sufficient apparent connection to justify their production or inspection” (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for “could possibly throw light on the issues in the main case” (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306).

More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]).

Whether the formulation of the test in civil proceedings is best expressed as an “on the cards” test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could “possibly throw light on” an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2) ; or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that “it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]”), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA).

Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a “fishing expedition”, in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said:

“A ‘fishing expedition’, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere ‘fishing expedition’.”

Jandson Pty Ltd v Edmonds: slip rule

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