Federal Court of Australia

Porter v Dyer [2021] FCA 1459

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant’s Notice to Produce to the First Respondent dated 14 October 2021 be set aside with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MIDDLETON J:

1    This is an application to set aside a Notice to Produce (the ‘Notice’) served by the Appellant on the First Respondent on 14 October 2021 for the purpose of the upcoming appeal likely to be heard in February 2022.

2    The Notice seeks two categories of documents. Paragraph 1 of the Notice seeks an unredacted copy of annexure LRG-2 to the affidavit of Lauren Rae Gasparini affirmed on 26 May 2021 (the ‘Annexure’). Paragraph 2 of the Notice seeks documents “relating to any meeting or conference between Mr James Murray Hooke and his solicitors in relation to the preparation of the affidavit of James Murray Hooke sworn on 10 May 2021, and referred to during the hearing of this matter at first instance on 25 May 2021 (T113:15-23)” (the ‘Hooke Call for Documents’).

3    In support of this application, the First Respondent relies upon a number of affidavits, the details of which I do not need to refer.

4    The principles to apply as to whether or not a notice to produce shall be set aside are not in contention, being: where it is an abuse of process, including where it is not served for the bona fide purpose of obtaining relevant evidence, or where documents sought to be adduced have no apparent relevance to the issues in the proceeding.

5    It is important to recall that the Notice relates to the appeal. It is contended by the Appellant that the Notice to Produce is relevant to grounds 1, 3 and 6 of the notice of appeal dated 24 June 2021. The Appellant says that the veracity of Mr Hooke’s account in his 21 May 2021 affidavit (the ‘second Hooke Affidavit’) is central to those grounds as his account formed a basis of the judge’s findings at first instance in Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641.

6    The grounds of appeal that I have referred to provide as follows:

1.    The primary judge erred in allowing the First Respondent, (Dyer), to rely on the second affidavit of James Royce Murray Hooke, sworn 21 May 2021 (Hooke affidavit).

…

3.    The primary judge erred in his acceptance of the evidence of the Hooke Affidavit and of Hooke’s evidence generally (at [16] and [86]-[91]) in relation to what was said during the meeting on 20 November 2020.

…

6.    The primary judge erred in finding that the administration of justice required the restraint to be ordered (at [133]-[151]).

7    Ground 1 refers to the reasons of the primary judge in the case of Dyer v Chrysanthou [2021] FCA 578. This judgment deals with the objection taken by Mr Porter to the filing and reading of the second Hooke Affidavit, which objection was dismissed. Ground 1 will cover the reasons for the judgment on that issue. The Notice will not be relevant to that dispute on appeal. The primary judge was either right or wrong on the material before him to allow the affidavit to be read. The appeal will undoubtedly be conducted on that basis.

8    As to ground 3, I do not see the documents that are sought to be produced to be relevant on appeal. Looking at [16] and [85] to [91] of the reasons of the trial judge in Dyer v Chrysanthou (No 2) (Injunction) [2021] FCA 641, this, again, will be determined by reference to the reasoning of the trial judge and the evidence before him and any error he is alleged to have made by the process undertaken in taking and considering the conflicting evidence.

9    As to ground 6, this is just a reference to the conclusion reached by the judge at first instance and does not indicate the documents sought will be of any relevance to that finding.

10    It is on this basis that I would set aside the Notice.

11    I do observe that the trial below proceeded without any reference to the unredacted prior version of the Annexure or to the Hooke Call for Documents. Each party was represented by counsel. Undoubtedly, forensic decisions were made throughout the hearing. Whether mistakes were made or accidents occurred, the record stands as not including the material now sought to be obtained.

12    I am not persuaded, at least, on the material before me, which includes the notice of appeal, the affidavits referred to, the extracts of transcript at trial and the written submissions, that the matters now raised assume importance in the running of the appeal even by reference to any potential error the trial judge may have made about whether Mr Hooke had been challenged in cross-examination or in accepting Mr Hooke’s evidence. If there is error, this will be demonstrated by reference to the record already before the Court.

13    I order the Appellant’s Notice to Produce to the First Respondent, dated 14 October 2021, be set aside with costs.

Associate:

Dated:    22 November 2021