Case: National Employers' Mutual General Insurance Association Ltd v Waind &amp; Hill [1978] 1 NSWLR 372
Outcome: cited
As with a subpoena, when a notice to produce is issued, three steps must be taken before the documents identified in the notice can be admitted into evidence. The steps were described by Glass JA (with whom Moffitt P and Hutley JA agreed) in National Employers' Mutual General Insurance Association Ltd v Waind &amp; Hill [1978] 1 NSWLR 372, at 381, as follows: 'The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.' 12 It is important to stress, however, that as Waind demonstrates, granting a party access to documents is one thing; admitting the documents into the proceedings is another. Mr Sheahan SC, who appeared with Mr Darke on the motion, urged me not to decide the first question by reference to considerations going to the admissibility of the documents in evidence. Questions of admissibility, so he argued, should be dealt with if and when they arise, on the basis of the appropriate criteria. 13 It follows from what Mr Sheahan has put, that an order granting access to Seven to documents identified in the notice to produce is not to be taken in any way as an indication by me that the documents so produced may be adduced in evidence by Seven. If the documents are tendered, or if Seven's experts seek to add material to their reports in order to refer to documents produced by Telstra in answer to a notice to produce, it will be necessary to consider whether it would be compatible with the just and orderly conduct of the trial to permit Seven to introduce the evidence at this stage. To do so may well cause prejudice to Telstra and the other respondents. The curing of any prejudice may disrupt the trial to such an extent as to warrant rejection of the proffered evidence. 14 As I indicated in the course of argument, I think the scope of the notice to produce, in its present form, is too broad. No issue of oppression has been raised by Telstra . Nonetheless, the notice to produce seeks classes of documents that could not, on any reasonable view, add to the relevant evidence in the proceedings. I have in mind, for example, that the notice to produce seeks board papers and minutes considering any potential change to the value of any of Telstra's pay television interests (existing or contemplated) in consequence of it acquiring any interest whatsoever in a free to air television network. A notice to produce in these broad terms should not be upheld in its entirety merely because it includes a narrow category of documents of apparent relevance to the issues in the proceedings.