Background
The plaintiffs brought a further interlocutory motion in a defamation proceeding that has been on foot as a standalone matter since 2023. It was their third attempt to obtain documents they said the defendant, The Sydney Children’s Hospitals Network, possessed but had withheld. The motion also sought broad leave to issue subpoenas and an order for an adverse inference if documents were not produced.
The requested material comprised alleged incident reports concerning the plaintiffs’ daughter’s April 2019 admission; correspondence concerning a transferred Government Information (Public Access) Act request and related internal correspondence; and a purported “final medical report” by Dr Marks. Earlier disputes over substantially the same material had been addressed in Onakoya (No 4) and Onakoya (No 5).
The Court’s Holding
Campbell J dismissed the motion and ordered the plaintiffs to pay the defendant’s costs. The defendant’s solicitor had given unchallenged affidavit evidence of detailed searches showing that no responsive incident reports existed. The Court would not order production of documents that appeared not to exist.
The GIPA-related requests either duplicated categories previously rejected or were broader requests for which no legitimate forensic purpose had been shown. A reference to a “preliminary” review did not establish that the defendant possessed and withheld the documents. Although an unexplained metadata discrepancy existed concerning Dr Marks’ update report, the defendant’s position was that only an interim report and update report existed; the Court would not make an order incapable of compliance. Whether any later-produced document affects the defendant’s case was a matter for trial.
The Court also refused plenary subpoena leave, noting that existing procedural orders already permitted the plaintiffs to seek leave for particular subpoenas through Chambers. An adverse-inference direction before trial was manifestly inappropriate because any such inference depends on the evidence available at trial and is for the trial judge.
Key Takeaways
- Unchallenged evidence that documents do not exist will ordinarily defeat a production application.
- A party seeking documents must identify a legitimate forensic purpose; repeated applications cannot relitigate earlier interlocutory rulings absent exceptional circumstances.
- Questions about adverse inferences from missing evidence are generally for the trial judge after hearing the evidence.
Why It Matters
The decision underscores the limits on repeated interlocutory discovery-style applications, particularly where a trial date is approaching. Campbell J stressed finality, the burden of recurring applications on the opposing party, and the need to preserve the listed hearing date.
For self-represented parties, the ruling confirms that procedural latitude does not create an advantage: subpoena requests must remain specific and supervised, and dissatisfaction with prior rulings does not justify renewed applications on the same issue.