› where the respondent applied to set aside a paragraph of a notice to produce served by the applicant
› where the respondent contended the paragraph had no legitimate forensic purpose
› where the documents called for by the paragraph would be relevant to issues in the proceeding
› held: application to set aside the paragraph refused, although amending its terms
Practice and Procedure
› privilege
› where the respondent claimed a draft submission and related documents were subject to legal professional privilege
› where the applicant challenged the privilege claims
› where there was no reason to doubt the privilege claims were legitimate
› observations regarding the practice of referring privilege disputes to other judges or Registrars
› held: application to require production of unredacted copies of the privileged documents refused
Practice and Procedure
› notices to produce
› where the applicant challenged the respondent’s compliance with the notice to produce
› where the applicant applied for an order that the respondent prepare an affidavit describing his compliance
› where no reason to doubt the respondent’s statement that he had searched for documents in compliance with the notice to produce in good faith
› held: application requiring the respondent to prepare an affidavit refused
Quick Take
1Documents called for by a notice to produce have sufficient relevance if they could reasonably be expected to throw light on issues in the proceedings; documents that were 'before' a decision-maker's drafter may be relevant to delay and legal unreasonableness grounds, but a call for all documents 'available to' the drafter is overly broad as it captures any document generally available within a department.
2A draft submission prepared by lawyers engaged to advise on the exercise of a statutory power, together with covering communications and internal discussion of the legal advice, is ordinarily privileged in its entirety — the substantive text of the draft is not severable from the lawyer's comments.
3Courts should accept legally represented parties' good-faith statements of compliance with notices to produce absent positive reason to doubt them, and should not routinely require affidavits explaining the manner of compliance.
