Liu v The Age Company Ltd [2011] NSWSC 53 (11 February 2011)

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Liu v The Age Company Ltd [2011] NSWSC 53 (11 February 2011)

Last Updated: 7 March 2011

Supreme Court New South Wales

Case Title:	Liu v The Age Company Ltd
Medium Neutral Citation:	[2011] NSWSC 53
Hearing Date(s):	1, 2, 3, 4, 9, 10 February 2011
Decision Date:	11 February 2011
Jurisdiction:
Before:	McCallum J
Decision:	Reserved reasons for procedural and evidentiary rulings
Catchwords:	NOTICE TO PRODUCE - whether amounting to an abuse of process where seeking documents also sought in substantive proceeding for preliminary discovery - admissibility of evidence - whether representations by solicitor amount to admissions by client - call for documents under r 21.10 UCPR - whether entitlement spent where affidavit not read
Legislation Cited:	Civil Procedure Act 2005 Evidence Act 1995 Uniform Civil Procedure Rules 2005
Cases Cited:	British Steel v Granada Television (1981) AC 1096 Fairfax & Sons v Cojuangco [1988] HCA 54; 165 CLR 346 Liu v The Age Company [2010] NSWSC 1176 Tyco Australia Pty Limited v Leighton Contractors Pty Limited [2005] FCAFC 115
Texts Cited:	Ritchie's Uniform Civil Procedure New South Wales
Category:	Procedural and other rulings
Parties:	Helen Liu (Plaintiff) The Age Company Limited (First Defendant) Richard Baker (Second Defendant) Phillip Dorling (Third Defendant) Nick McKenzie (Fourth Defendant)
Representation
- Counsel:	Mr B R McClintock SC and Ms G R Rubagotti (Plaintiff) Mr T D Blackburn SC and Mr A T S Dawson (Defendants)
- Solicitors:	Kennedys (Plaintiff) Minter Ellison (Defendant)
File number(s):	2010/224488
Publication Restriction:

Judgment

1

HER HONOUR : These are proceedings for preliminary discovery under Part 5.2 of the Uniform Civil Procedure Rules 2005. The application is brought in aid of proposed defamation proceedings in relation to two articles concerning the plaintiff, Ms Helen Liu, published in The Age on 3 February 2010 (exhibits B and C). The articles make reference to a collection of documents said to be Ms Liu's private records "obtained by The Age after a 10-month investigation". The identity of the people from whom those documents were obtained is not disclosed in either article.

2

One of the articles states that the documents "show Ms Liu recorded her 1997-1998 payment of 850,000 Chinese Yuan - approximately $150,000 at the then current values - to Joel Fitzgibbon" (correctly identified at the time the article was published as "former defence Minister"). It is common ground that the document there referred to is the document that has been identified in the proceedings as "the handwritten list". The article also makes specific reference to a letter allegedly written by Ms Liu to a senior bank executive concerning Mr Fitzgibbon.

3

Ms Liu alleges that, to the extent that those and other documents referred to in the articles purport to have been written by her, they are forgeries. The substance of the relief sought in these proceedings is to compel the newspaper and its journalists to disclose their sources. The defendants contend that they are bound in conscience not to disclose the identity of their sources or the contents of any communications with them. The relief sought, which is discretionary, is opposed on that basis.

4	This judgment publishes my reasons for a number of procedural rulings given during the course of the hearing of the application.

Defendants' notice of motion dated 18 January 2011

5

The hearing of the proceedings commenced in October last year but was stood over part-heard, for the reasons given in my earlier judgment: Liu v The Age Company [2010] NSWSC 1176. The defendants subsequently served further evidence in opposition to the relief sought, including an affidavit sworn by the second defendant, Mr Richard Baker. Regrettably, the exhibits to the affidavit included a number of documents presented in a form which disclosed some of the allegedly confidential material. It is common ground that the inclusion of the documents in that form was due to inadvertence. The defendants had intended to include the documents, but in redacted form so as to obscure any detail that might tend to identify the newspaper's sources.

6	The documents inadvertently disclosed in that form were:

(a) two letters allegedly sent by Ms Liu to senior bank officers (including the letter mentioned in the article referred to above). Those letters are exhibits RJB 21 and RJB 38 to Mr Baker's affidavit sworn 1 December 2010. The defendants do not claim any confidentiality in the contents of either letter but only in respect of Chinese handwriting appearing on the letters. At the time I gave the rulings the subject of this judgment, it was the defendants' case that the handwriting was that of Ms Liu (that allegation has since been qualified);

(b) two emails from Mr Baker to the person with whom he dealt directly as his contact with the sources (RJB 41 to Mr Baker's affidavit).

7

Two of those documents (RJB 38 and RJB 41) had apparently already been produced to the Court in response to notices to produce dated 13 September 2010 and 20 September 2010 called upon by Ms Liu during the earlier hearing. At the time of the earlier call Mr McClintock SC, who appears with Ms Rubagotti for Ms Liu, was content to defer resolution of the question of the confidentiality of those documents. No application for access was made at that stage.

8

At the outset of the resumed hearing earlier this week, the defendants moved the Court by notice of motion dated 21 January 2011 for an order that the inadvertently disclosed documents be returned (and related relief). The parties were in agreement that I should determine that notice of motion first, as being logically anterior to the issues raised by the substantive proceedings.

9

During the course of argument, however, the possibility emerged that the need to determine the defendants' motion might be obviated by resolving the question of Ms Liu's entitlement to inspect the same documents following the production of two of them in response to the notice to produce (and the likelihood that the issue of her entitlement to inspect the third would follow the fate of the other two). Accordingly I proceeded, with the agreement of the parties, to determine that question first.

10

On 2 February 2011, I granted leave to Ms Liu to inspect the two letters then alleged to bear her handwriting (RJB 21 and RJB 38). I declined leave to inspect Mr Baker's two emails to his contact in a form that disclosed the identifying material which the defendants had intended to mask (RJB 41). My reasons for making those orders are as follows.

11

Mr Blackburn SC, who appears with Mr Dawson for the defendants, submitted that the notices to produce amount to an abuse of process, since they seek production of the very documents sought to be obtained in the substantive proceedings. He relied on the decision of the Full Federal Court in Tyco Australia Pty Limited v Leighton Contractors Pty Limited [2005] FCAFC 115 as support for that proposition.

12

In Tyco , an applicant for preliminary discovery in the Federal Court argued that there was no right to issue a notice to produce in aid of such proceedings (the notice in question had been issued by the respondent in that case). The Court rejected that proposition, holding that ordinary interlocutory procedures are available in aid of the resolution of any fact in issue arising in such an application, provided always that the procedure invoked does not amount to an abuse of the process of the Court: per Hill J at [34] and [46], Hely and Conti JJ agreeing at [49] and [55] respectively.

13

In reaching that conclusion, Hill J said (at [34]): "it would be clearly an abuse of process for an applicant for pre-action discovery to issue a notice to produce the very documents sought by the application for pre-action discovery". Mr Blackburn submitted that Ms Liu's notices must be seen as amounting to an abuse of process in accordance with that statement.

14	It may be accepted that there is duplication between the relief sought in Ms Liu's summons and the documents identified in the notices to produce. The relief sought in the summons is:

1 An order pursuant to part 5.2(2)(a) of the Uniform Civil Procedure Rules that the Second to Fourth Defendants inclusive attend the Court on such date as the Court may determine to be examined as to the following matters:

(a) the identity and further description of the person or persons who provided to them or any one or more of them or to any other person on behalf of the First Defendant, the Documents referred to in the Affidavit of Elaine Quinn sworn on 2 July 2010;

(b) the manner and circumstances in which the Second to Fourth Defendants or any other person on behalf of the First Defendant obtained the Documents including the person or persons from whom the Documents were obtained.

2 An order pursuant to UCPR 5.2(2)(b) that the Defendants give discovery of the Documents referred to in order 1(a) above.

3 An order that the defendants and each of them produce to the Court on the examination referred to in order 1 above all memoranda, notes, notebooks, audio recordings, video recordings, diaries, draft articles, correspondence, records of interview and other documents and papers or copies thereof which relate to or record any interview, meeting, conversation or other actions with the person from whom the Defendants obtained the Documents referred to in order 1 above and which identify any such person or persons by name or further description."

15

The documents referred to in Ms Quinn's affidavit referred to in prayers 1 and 2 in the summons are the handwritten list and the letter which is RJB 38. The balance of the material sought by the notices to produce is, in all likelihood, substantially the same material as is sought in prayer 3 in the summons. Mr McClintock did not contend otherwise. However, he submitted that it does not follow inexorably that such a notice will amount to an abuse of process. So much is acknowledged in the judgment of Hely J in Tyco at [54], where his Honour said:

Thus, at least prima facie, it would be an abuse of process for an applicant for preliminary discovery to seek to compel the production of documents by notice to produce, when the production of those documents is sought under O 15A r 6. But it does not follow, for example, that a subpoena sought to be issued by an applicant for preliminary discovery against a third party would necessarily be an abuse, depending upon the scope and purpose of the subpoena.

16

The critical issue in the present proceedings is Ms Liu's entitlement to compel disclosure of the identity of certain persons. The documents sought by the summons are sought in aid of ascertaining that single fact. An important consideration in determining Ms Liu's entitlement to the relief sought is whether documents provided to the defendants by those persons purportedly as Ms Liu's personal records were in fact forgeries. In that context, it may readily be seen that the application raises a difficult question of fact. In my view, the bare fact that the notices to produce seek documents also sought in the prayers for relief in the summons is not determinative. Ms Liu's entitlement to bring to aid ordinary interlocutory procedures in the resolution of the questions of fact raised by the application must be analysed on its merit, not as a matter of form.

17

As already noted, the defendants claim no confidentiality in the contents of the two letters allegedly sent by Ms Liu to the two bank officials. Both letters are expressly cited in the articles themselves. Further, full translations of both letters, together with copies of the letters themselves with only the handwriting obscured, have been openly included in the evidence served by the defendants in the proceedings. The only claim as to confidentiality relates to the appearance of the handwritten Chinese characters.

18

At the time I determined Ms Liu's application for leave to inspect the two letters, the defendants maintained that the handwriting as to which they claimed to be under an obligation of confidentiality was that of Ms Liu. So much was expressly claimed (at least in respect of RJB 38) in correspondence from the defendants' solicitor as the basis on which inspection was opposed (letter marked exhibit A on the application for access).

19

Mr Baker made statements to similar effect in his evidence on the defendants' motion, albeit with some equivocation (T42 to 46 of 1 February 2011). Following the determination of the present question, Mr Baker sought to qualify or correct that evidence so as to clarify that his contact had not specifically identified any particular handwriting as that of Ms Liu (T251 to 253 and 259 to 261). That further evidence, however, was given only after I had given my ruling granting Ms Liu leave to inspect the handwriting on the two letters.

20

On the defendants' premise that the Chinese handwriting on those letters was Ms Liu's, I could see no logic in the contention that its disclosure to her carried any risk of disclosure of the newspaper's sources, as contended on behalf of the defendants. Mr Blackburn submitted that disclosure to Ms Liu of her handwriting on those letters might trigger a series of recollections that would lead her to identify a person who might have had possession of the letters. With great respect to Mr Blackburn, I do not see how that could be so in the case of individual documents allegedly written by Ms Liu, the contents of which have been freely disclosed. For those reasons, I granted Ms Liu access to unredacted copies of the two letters.

21	In light of that ruling, Mr McClintock also sought leave to inspect the handwritten list, which had been produced to the Court in response to the notice to produce dated 30 September 2010. For the same reasons, I granted Ms Liu leave to inspect that document.

22

As to the emails, Mr McClintock did not dispute that the inadvertently provided versions of those documents disclose information that may tend to identify the sources. The thrust of his submission as to his entitlement to inspect the documents in that form was that, having seen the identifying information in question, it would be impossible for him to pretend otherwise or to conduct his case without having regard to the knowledge he held. He submitted, further, that since the defendants have voluntarily tendered the emails on their motion (in redacted form) he should have access to the obscured information, which he knows in any event.

23

I do not think those contentions answer the objection that a notice to produce issued in aid of an application for preliminary discovery cannot properly compel disclosure of the very information sought by the application, that is, the identity or whereabouts of the person in question. Further, as fondly submitted by Mr Blackburn, the task of putting the inadvertently disclosed information to one side in the conduct of the case is not beyond the wit of a man of Mr McClintock's experience and ability. In my view, the proper forensic purpose of the notices to produce must end at the point where the information sought might identify the sources. For those reasons, I declined to grant Ms Liu or her legal representatives leave to inspect the versions of RJB 41 produced in answer to the notices to produce, with or without the limited redactions made in the versions inadvertently disclosed.

24	Following those rulings, the balance of the defendants' motion was resolved by agreement between the parties.

Mr Baker's affidavit

25	On 3 February 2011, I ruled on a series of objections to Mr Baker's affidavit. It is appropriate to state my reasons as to two determinations that governed the rulings I made.

26	The first relates to the purpose for which a large amount of the evidence was to be admitted. Mr Baker had set out, at length, the investigations he undertook and the information he received during the course of his investigation culminating in the preparation and publication of the two articles.

27

That evidence is plainly admissible for the purpose of establishing the fact that the defendants received such information during the course of preparation of the two articles. The relief sought by Ms Liu is discretionary. In opposition to her application, the defendants rely (among other things) on the considerations that underlie the newspaper rule, which are factors to be taken into account in the exercise of the Court's discretion: John Fairfax & Sons v Cojuangco [1988] HCA 54; 165 CLR 346 at [22], 357.1. In that context, plainly it will be relevant to consider the integrity of the investigation and whether the newspaper acted with "a due sense of responsibility" (as it was put by Lord Denning in British Steel v Granada Television (1981) AC 1096 at 1191, cited in Cojuangco at [12], 354.1). Mr McClintock did not oppose the admission of the material for that purpose.

28

However, Mr Blackburn sought in addition to rely upon the material for the purpose of establishing the truth of its contents. That submission was made in the context that, for the reasons stated in my earlier judgment at [25] to [36], this hearing is being conducted on the premise that the proceedings are interlocutory. Accordingly, the hearsay rule does not apply if the party adducing the evidence also adduces evidence of its source: s 75 of the Evidence Act 1995.

29

The fairness of admitting the evidence must nonetheless be considered in the context of the nature of the questions of fact that arise for the Court's determination. The defendants' case is that the very serious allegations concerning Ms Liu made in the two articles are true. As to most of the material objected to, I was of the view it was of insufficient relevance or weight in establishing the principal contentions against Ms Liu to warrant its being admitted for that purpose. As to much of the material, to allow the underlying factual contentions to be established by evidence in that form would have afforded Ms Liu no real opportunity to test the matters alleged which, in my view, would have been unfairly prejudicial to her.

30

Accordingly, as to a number of paragraphs, I made an order pursuant to s 136 of the Evidence Act 1995 limiting the use to be made of the evidence to establishing what Mr Baker had in his possession and what information he took into account in the preparation of the two articles. I ruled that the evidence was not to be used for the purpose of establishing the truth of its contents.

31	The paragraphs to which that ruling related (referred to as "the material admitted on the limited basis") were paragraphs 6 to 10, 12 to 14, 19 to 20, 43, 48 and 49 and the exhibits to those paragraphs.

32

Paragraphs 6 to 10 and 12 to 14 set out "preliminary information provided by the sources", further inquiries made by Mr Baker of Mr Fitzgibbon (at the time he was the Defence Minister) concerning his relationship with Ms Liu and a disclosure to Parliament made by Mr Fitzgibbon shortly after that exchange of correspondence. Mr Blackburn submitted that a separate basis for admitting that material was that it included representations made by Mr Fitzgibbon in furtherance of a common purpose. He submitted that such representations should be taken to be admissions by Ms Liu admissible under s 87 of the Evidence Act .

33	Section 87 provides:

Admissions made with authority
(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that:
(a) when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or
(b) when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority, or
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.
(2) For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove:
(a) that the person had authority to make statements on behalf of another person in relation to a matter, or
(b) that the person was an employee of another person or had authority otherwise to act for another person, or
(c) the scope of the person's employment or authority.

34

Mr Blackburn submitted that the representations, considered in combination with other evidence, were some evidence of a common purpose Mr Fitzgibbon had with Ms Liu to receive payments, benefits and gifts from her. I was not satisfied that it was reasonably open, on the documents relied upon, to find that there was any such common purpose or that the representations made by Mr Fitzgibbon were made in furtherance of any such common purpose.

35	Paragraphs 19 to 20 related to similar inquiries made of Mr Eric Fitzgibbon by the fourth defendant, Nick McKenzie. That material was admitted on the limited basis for the same reasons.

36

Paragraph 43 exhibited a report prepared by a forensic accountant for the purpose of other proceedings in this Court. The report allegedly identifies "numerous unexplained payments" made to a solicitor, Mr Donald Junn, from the rental receipts of companies associated with Ms Liu. The report (exhibit RJB 30) is unsigned and marked "draft for discussion purposes only". The report was plainly not admissible in that form, except on the limited basis.

37	Paragraphs 48 and 49 set out information relied upon by Mr Baker as tending to establish the likely authenticity of the handwritten list on the basis of its consistency with other material available to him. I considered that his view on those matters was not admissible except on the limited basis.

38

The second determination as to which I should state my reasons relates to Mr Baker's evidence as to conversations he had with the solicitor, Mr Junn. The conversations are set out verbatim and in great detail in paragraphs 37 to 41 of Mr Baker's affidavit. Separately, documents were exhibited to the affidavit (in paragraphs 21 to 25) for the purpose of establishing that Mr Junn had frequently been retained as a solicitor by Ms Liu or companies associated with her.

39	The defendants contend, in some instances on that basis alone, that a series of damning statements made to Mr Baker by Mr Junn amounted to admissions by Ms Liu made with her authority and were accordingly admissible under s 87 of the Evidence Act .

40

To the extent that the submission was based on the contention that the statements were made in furtherance of a common purpose (s 87(1)(c)), in my view it was misconceived. There is simply no evidence that Mr Junn and Ms Liu reached any relevant arrangement or understanding to do anything together at all.

41	As to whether any of the representations was made with Ms Liu's authority so as to attract the application of s 87(1)(a) or (b), a careful consideration of the content of the relevant paragraphs of Mr Baker's affidavit discloses no basis for that conclusion.

42

Paragraph 37 of the affidavit sets out the conversation that is alleged to have taken place when Mr Baker first approached Mr Junn. It is quite plain from the terms of the conversation that Mr Junn can have had no authority to say anything on behalf of Ms Liu as to the substantive matters raised by Mr Baker during that conversation. Even assuming Ms Liu was Mr Junn's client in respect of that matter at that time (which is questionable) he had, so far as the affidavit discloses, obtained no instructions from her prior to the meeting as to the matters discussed. A solicitor is not cloaked with authority to make admissions on behalf of a client merely as a result of having previously being retained in other matters, or even as a result of being retained in the matter in question.

43	The remaining paragraphs relate to two further conversations between Mr Baker and Mr Junn. As to the first further conversation, the statements made by Mr Junn were prefaced by the following remark made by him:

I am trying to get her. She is apparently with people and the moment. I don't really expect her to authorise me to say anything. These are rather momentous matters for her. She is likely to consider it.

44	I do not think it is reasonably open, in light of that statement, to find that any of the representations made in the balance of that conversation was an admission made with Ms Liu's authority.

45	The next conversation was prefaced with the following exchange:

Mr Baker: Do you have a response from Helen for us?

Mr Junn: No I don't. She wants me to fly over to see her.

46

I do not think it is reasonably open to conclude that any of the representations made following those prefatory statements was an admission made on behalf of Ms Liu with her authority. Mr Blackburn submitted that it could be concluded from that exchange that Mr Junn had by then spoken directly to Ms Liu and that, in that context, his failure to resile from anything he had previously said demonstrated that retrospective authority had been given by Ms Liu to make the representations he made. I do not accept that submission. That Mr Junn made full disclosure to Ms Liu as to all that he had said to Mr Baker is barely open as an inference. Leaving aside the temporal problem (that s 87 requires authority at the time the representation was made), I am not prepared to speculate as to what was said between Mr Junn and Ms Liu.

47	For those reasons I rejected paragraphs 21 to 25 and 37 to 41 of Mr Baker's affidavit (paragraphs 37 to 41 were later admitted on the limited basis following Mr McClintock's cross-examination of Mr Baker).

48	For the same reasons, I rejected the tender by Mr Blackburn of certain paragraphs of an affidavit sworn by Mr Junn and served but not read on behalf of Ms Liu.

Calls for documents made on 9 February 2011

49

On 9 February 2011, Mr McClintock made a number of further calls for the production of documents for inspection on behalf of Ms Liu. He indicated that access was not sought by Ms Liu personally and that she was content, for the time being at least, for access to be confined to her legal representatives.

50

The first call was for access to the documents produced to the Court last October in response to the notice to produce dated 13 September 2010. The documents identified in that notice are certain documents referred to in an affidavit sworn by the defendants' solicitor, Mr Peter Bartlett. As with the other documents produced to the Court at that time, access to those documents was not sought at the time they were produced.

51	Secondly, Mr McClintock called on the plaintiff's Fifth Notice to Produce. The documents identified in that notice were certain documents referred to in an affidavit sworn by the second defendant, Mr Baker. The documents sought in that notice have not yet been produced to the Court.

52	In addition, Mr McClintock renewed a call made during the hearing on 4 February 2011. The call made on that date arose as a result of the following exchange in Mr McClintock's cross-examination of Mr Baker (at T264.27):

Q. I just want to go back to what's on page 44. What your evidence is, I take it now Mr Baker, is at the time you wrote these articles you did not know, because the source had not told you, whether or not the list was in my client's handwriting, is that your evidence?

A. *No. My evidence is that in correspondence with the source, and we're asking questions about a number of documents in there, including the list, most obviously the list, the source came back expressing a fear about certain handwritten documents and one could only take that to be in reference to the questions I was asking.

McCLINTOCK: I call for the production of the emails to which the witness has just referred. I want them produced now. I also renew my call for the document that conveyed the 135 pages that was said was handed over in late January that I sought before, and I ask for their production now.

53

A short adjournment was granted to enable counsel for the defendants to consult with Mr Baker to obtain instructions in respect of the call. When the hearing resumed, several emails were produced in answer to the call for "the document that conveyed the 135 pages that was said was handed over in late January". However, those emails had no content except the words "subject documents".

54

Mr McClintock then made a further call (at T266) in effect seeking any email that contained a description of the information that was being offered in the 135 pages said to be Ms Liu's personal papers. Mr Blackburn indicated on behalf of the defendants that he was not in a position to answer the call at that point, and Mr McClintock was prevailed upon (by me) to continue his cross-examination. He indicated, however, that he wished to see the documents before concluding his cross-examination of Mr Baker. That is the call renewed on 9 February 2011.

55	Finally, presumably for abundance of caution, Mr McClintock called for the complete exchange of correspondence between Mr Baker and his contact to the extent that any email forming part of that exchange was not caught by any of the earlier calls.

Documents sought by the Notices to Produce

56	Mr McClintock identified two grounds for the calls. First, as to the documents sought by the two notices to produce, he relied upon rule 21.10(1) of the Uniform Civil Procedure Rules 2005. That rule provides:

(1) Party A may, by notice served on party B, require party B to produce for inspection by party A:

(a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and

(b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.

57	Secondly, Mr McClintock relied upon the power of the Court to make an order akin to a subpoena order requiring production of documents to the Court (presumably under s 68 of the Civil Procedure Act 2005).

58

In order to explain the issues raised by the calls, it is necessary to record something of the history of the proceedings. When the hearing of the proceedings commenced in October last year, the defendants sought to rely on the affidavit of Mr Bartlett to which I have already referred. That affidavit sought to explain, on information and belief, the basis on which the defendants contend that they are bound by undertakings of confidentiality not to disclose the identity of their sources.

59	For the reasons explained in my earlier judgment, I rejected the evidence in that form but afforded an opportunity to the defendants to put on further evidence.

60	Mr Blackburn submitted on behalf of the defendants that, in light of the rejection of the evidence, the purpose of the entitlement to make a call under rule 21.10 is spent. In my view, that submission assumes that the entitlement is more narrowly constrained than is the case.

61

Unlike a number of production powers and obligations (such as the subpoena power and the discovery obligation), the entitlement of a party to require production for inspection of a document referred to in an affidavit is not expressly constrained by the requirement that the document be relevant to a fact in issue. That may be because, as suggested in the annotations to the rule in Ritchie's Uniform Civil Procedure New South Wales , the rule implicitly assumes the likely relevance of a document that has been "referred to" in a pleading, affidavit or other document to which the rule applies.

62

Alternatively, the rule may be intended to give effect to a principle that a party who chooses to refer to a document in a pleading or affidavit should not be permitted to oppose production of the document for inspection, whether or not it is relevant to a fact in issue. That is not an unlikely construction of the rule. In any event, it is not necessary for me to determine that question. Assuming (conservatively) that a party may be excused from producing for inspection a document referred to in an affidavit on the grounds that the document is not relevant to any fact in issue, the relevance of the documents referred to in Mr Bartlett's affidavit in the present case is manifest.

63

Indeed it is plain that the documents were referred to by Mr Bartlett for the purpose of supporting the defendants' case as to a critical fact in issue in the proceedings, namely, whether the defendants are bound in conscience not to disclose the identity of their sources, in light of undertakings allegedly given to the sources in the very communications now sought.

64

Further, nothing in the terms of rule 21.10(1)(a) lends any support to the proposition that the obligation to produce a document expires upon rejection of the relevant part of the affidavit. The contention that it does lacks any force, in my view, in the circumstance where (as in the present case) the affidavit was rejected on the grounds of form, not for want of relevance.

65

For those reasons, I was satisfied that the specific documents referred to in the affidavit of Mr Bartlett and in the affidavit of Mr Baker were liable to be produced for inspection, notwithstanding the fact that some of the relevant parts of the affidavits were not admitted into evidence. For the reasons explained below, that ruling did not extend to the documents identified in paragraphs 3(b) and 4 of the Notice to Produce dated 13 September 2010.

Documents describing the information offered by the sources

66	As to the documents called for at T266, Mr Blackburn indicated during argument that the defendants would not resist an order requiring production of documents identified as follows:

Any document recording or referring to the personal papers of the plaintiff referred to in the articles published in The Age (Exhibits B and C) or containing any description of the information that the contact or sources were offering to supply to The Age, except to the extent that those documents need to be redacted to conceal material which tends to identify any of the sources .

67	Accordingly, I made an order requiring documents answering that description to be produced.

68

As to the broader call made by Mr McClintock during argument for all correspondence between Mr Baker and the contact, which I deferred for further consideration, my present view is that the defendants should not be required to produce documents in answer to that call (except to the extent that any such document is required to be produced in answer to either of the notices to produce or the call expressed in the agreed terms set out above). The principal forensic basis identified for a call in such terms was that it might disclose a failure on Mr Baker's part to make reasonable inquiries as to the provenance of the documents provided to him. However, in light of the terms of the other calls, that would be demonstrated (if it were the case) by an absence of any such email among the material to be produced.

69

Further correspondence from the defendants on that issue sent to the Court during the evening during which they were required to collate and redact the relevant documents noted that the documents identified in some parts of the notice to produce fall into the same category, effectively seeking the entire chain of communication. I indicated in response to that correspondence that the defendants would not be required to produce the documents identified in paragraphs 3(b) and 4 of the notice to produce dated 13 September 2010 without having an opportunity to be heard further as to those paragraphs.

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