Background
John Janek Gazecki sued Stephen Fell for defamation over a 3 November 2025 email sent to MidCoast Council personnel involved in separate Land and Environment Court proceedings. The email concerned flooding and an alleged failed dam near the parties’ properties, and stated that the defendant’s property, vehicles and machinery had been vandalised and that he had made police reports.
The plaintiff issued a subpoena to the NSW Police Commissioner seeking complaints, event reports, notebook entries, body-worn-video footage and internal communications relating broadly to the plaintiff, his wife, their property and a former occupier from 2018 to May 2026. He contended the material could illuminate republication, publication, damages, credit, and possible amendments to his pleading. The defendant applied to set the subpoena aside.
The Court’s Holding
Campbell J set aside the subpoena as an abuse of process under r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW). The plaintiff had not discharged the forensic onus of showing that the broad police material had an apparent relevance or other legitimate forensic purpose in a claim based on one identified publication.
Only the pleaded vandalism imputation had any potential connection to police material. But the subpoena ranged over eight years, sought many categories of complaints concerning several people and the property, and was not tailored to republication after the email sued on. The prospect that production might reveal new defamatory publications or useful material was speculative and amounted to fishing. Reports to police could also attract the absolute-privilege defence in s 27(2)(b)(i) of the Defamation Act 2005 (NSW).
Key Takeaways
- A subpoena must have an identifiable legitimate forensic purpose; apparent relevance may include material useful for cross-examination or credit.
- A party cannot use compulsory production to investigate whether an unpleaded or additional cause of action might exist.
- A broadly framed subpoena seeking years of third-party records will be set aside where its asserted relevance is speculative.
Why It Matters
The decision applies the NSW Court of Appeal’s apparent-relevance test to a defamation proceeding and reinforces the distinction between legitimate evidentiary inquiry and a fishing expedition. Even where a subpoenaed agency has already produced documents, relevance must be assessed prospectively, before inspection.
The Court ordered the police material returned, awarded the defendant the costs of the subpoena application, and made further case-management directions concerning any proposed amended statement of claim.