Introduction
A recent defamation case from the New South Wales District Court has provided guidance on when a party can access documents via subpoena in defamation proceedings. In O'Shanassy v Turland (No 3) [2025] NSWDC 27, the Court dealt with an application to set aside a subpoena issued to Westpac Bank seeking financial records of companies associated with the plaintiff. The defendant had sought banking records to support a justification defense. Justice Gibson rejected the plaintiff's application to set aside the subpoena, holding that the documents met the "apparent relevance" test for legitimate forensic purpose.
The "Apparent Relevance" Test for Subpoenas
When a party seeks to access documents via subpoena in defamation proceedings, the documents must satisfy what is known as the "apparent relevance" test. As explained in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65], a subpoena is justified as having a legitimate forensic purpose if the documents sought are "apparently relevant" to an issue in the proceedings.
The Court in Blacktown explained that this test is satisfied if it can be seen that the documents sought will "materially assist on an identified issue" or if there is a "reasonable basis beyond speculation" that the documents will assist. Importantly, if the material assistance will benefit the party that issued the subpoena, the prospect of the forensic purpose being impugned as illegitimate is "virtually non-existent."
Documents Need Not Be Directly Admissible
Documents sought by subpoena need not be directly admissible as evidence. As noted in Maddison v Goldrick, documents subpoenaed for the purposes of cross-examining a witness are considered documents required for the purposes of evidence. This extends to cross-examination on issues of credit, as highlighted in cases such as Brand, Norris v Kandiah [2007] NSWSC 1296, and Liristis v Gadelrabb [2009] NSWSC 441.
Common Objections to Subpoenas in Defamation Cases
There are several common objections to subpoenas in defamation cases, all of which were addressed in O'Shanassy v Turland (No 3):
Lack of written evidence: In defamation cases, oral evidence is the general starting position unless parties apply for statements or affidavits. As noted in Martrat Pty Limited trading as Huxley Hill and Associates v Murphy [2020] NSWDC 1, requirements for written statements typically do not apply to defamation actions.
Inadequate particulars: Some plaintiffs argue that subpoenas should be rejected if the defendant has not provided sufficiently detailed particulars of justification. However, as explained in Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331, the requirement for particulars with "precision as in an indictment" is about specificity rather than the amount of information provided.
Timing of information: A common objection is that defendants can only rely on information in their possession at the time the defence was delivered. However, the Full Court in Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; [2019] FCAFC 125 clarified that proof of a justification defence "may be augmented after invoking processes of discovery and production of documents by subpoena."
Non-parties to litigation: The fact that a subpoena seeks documents from entities not party to the litigation is irrelevant, provided there is a connection to an issue in the proceedings.
Augmentation of Truth Particulars
A key principle emerging from recent cases is that truth particulars in defamation cases need not be "frozen in time." As Kenneth Martin J stated in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347, "an augmentation to particulars is a common scenario in commercial litigation, even in defamation actions. It simply means that as more precise information comes to hand, the precision of the particulars is magnified."
This principle recognizes that justification is the "keystone of freedom of speech" and highlights the importance of maintaining public confidence in the legal system, as noted in Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98.
Relevance Beyond the Particulars
Documents sought by subpoena might be relevant to issues beyond the particulars of justification. For example, in O'Shanassy v Turland (No 3), the Court noted that documents were relevant to the plaintiff's plea that knowledge of the falsity of imputations aggravated his hurt to feelings. As pointed out in Della Bosca v Arena [1999] NSWSC 1057, such a plea "raises an 'issue' in the proceedings" that may require production of documents.
Conclusion
The "apparent relevance" test provides a relatively low threshold for accessing documents by subpoena in defamation proceedings. While fishing expeditions remain impermissible, courts generally allow access where there is a reasonable basis to believe the documents will assist on an identified issue or in cross-examination.