"... [I]n my experience it has long been the practice in this State for the judge, even against opposition, to exercise a discretion to allow one party or the other to inspect documents which appear to be relevant to the issues, whether or not in admissible form. As I understand past practices, where, however, objection is raised by the owner of the documents, the judge examines the documents with some care to ensure there is no abuse of the subpoena, and to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings, in which event he will permit inspection by one or both parties at an appropriate time. The question of their admissibility without more, in accordance with the rules of evidence, does not then arise because, if relevant, they may be admitted in a variety of ways, as by first establishing facts or adopting procedures which make them admissible or by their being admitted by consent. If apparently relevant, I do not see how the objections of the stranger could prevent their admission in evidence, by consent or otherwise, or the inspection which may lead to this occurring. The ultimate question of whether they are ruled to be relevant and/or admissible is left to the third stage of receiving evidence. In my view, this practice is within the wide judicial discretion already referred to, to permit inspection of documents in the control of the court pursuant to a valid subpoena.

The crucial question in relation to the exercise of the discretion to permit inspection in the second step is whether the documents have apparent relevance to the issues. It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon. The judge is in some difficulty in determining whether documents are relevant prior to the presentation of the evidence or at the commencement of the case. If there is particular objection from the witness, or questions of privacy are involved, no doubt procedures can be adopted to ensure that only relevant documents are inspected. In other cases, it would appear appropriate to proceed to exercise the discretion, provided the documents are apparently relevant or are on the subject matter of the litigation. However, the limitation on the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in cross-examination." [underlining supplied]

In our view, the above quoted passages correctly set out the law and practice in civil proceedings in this State relating to the production and inspection of documents pursuant to a subpoena. It is said in Seaman's Civil Procedure in Western Australia at 36.12.13:

"If the recipient of the subpoena objects, the court will not allow the parties to inspect the documents unless it is requisite for the purposes of the administration of justice that they should do so. The judge has a wide discretion, and will, for example, permit inspection to secure a trial upon the best possible evidence with proper cross-examination. If there is particular objection from the recipient of the subpoena, or questions of privacy are involved, the court will devise a procedure to ensure that those matters are protected before inspection is permitted. The judge may take steps to protect a stranger's privacy and rights although there is no person before him who objects to their inspection. Generally inspection will be permitted when he forms the opinion that the documents are apparently relevant to the issues in the litigation, even if the party seeking inspection gives no undertaking to tender them or use them in cross-examination. This question of apparent relevance is quite separate from claims to privilege (ss [36.12.12]) and from the question of relevance for the purpose of admission into evidence."

Waind's case is cited in support of this passage.

In dealing with the issue of "relevance" separately from that of "apparent relevance", her Honour relied initially on the passage from Waind's case, at 385, which we have underlined. Her reliance on that passage led her to conclude that apparent relevance is necessary "in order to have a subpoena issue or to resist an application to set it aside" but that some greater degree of relevance is required "before inspection will be permitted, if there is some legitimate objection to inspection". With respect, she may have over-stated the effect of the passage in Waind's case which asserted that it is only "apparent relevance" which must be demonstrated for inspection, in the exercise of discretion, to be permitted. As we understand the reasons of Moffitt P, once apparent relevance is demonstrated, inspection will generally be ordered as a matter of discretion in the absence of good reason being shown to the contrary. The underlined passage suggests that the proper exercise of that discretion might, in a particular case (of a particular objection, or an issue of privacy) require that only "relevant documents" be inspected if the circumstances are such that that can be done. It is difficult to see how, when inspection prior to trial is ordered, that can be done, as in the absence of an admission, there is no way of definitively testing relevance. The procedure followed in the present case did not, in any event, permit that to be done. The issue of inspection was to be determined prior to the issue of the subpoenas and so prior to the production of the documents to the court. On that basis, the documents could not be inspected by the court in order to determine their relevance.

As the matter was apparently argued before her Honour, the issue of relevance fell to be determined by the issues identified by the categories of documents identified in the order of Murray J, the documents annexed to the affidavits of Mr Andrusiak, including the respective claims and contentions and the response, and the other affidavit evidence before her Honour. The grounds of appeal make no complaint in that regard. Nor do the objections contained in the affidavits sworn on behalf of the appellants reveal any real question that the categories of documents sought are not "apparently relevant". It is important to recognise, as pointed out in Waind's case, that "relevance" is not limited to the introduction of documents into evidence. Their relevance may lie in giving rise to a line of enquiry which is relevant to the issues before the trier of facts. They will frequently be relevant for the purpose of meeting the opposing case, as for example by way of cross-examination.

Having so decided the place of "apparent relevance" in respect of the application, her Honour relied on the decisions of Debelle J in Santos Ltd v Pipelines Authority of South Australia (No 2) (1996) 186 LSJS 257 (a decision of the Full Court of South Australia) and of Rogers CJ in Arhill Pty Ltd v General Terminal Co Pty Ltd (1991) 23 NSWLR 545 at 555-556, to find that the "test", where there are objections on reasonable grounds to inspection, is that the documents are "necessary for fairly disposing of the proceedings". She went on to caution, however, that the court "should be slow to regard documents as not 'sufficiently' relevant unless their relevance is truly peripheral or remote from the issues involved". Her Honour's caution illustrates the difficulty in determining, at the stage when inspection was sought in this case, whether any particular document is "necessary for fairly disposing of the proceedings". It is frequently difficult to determine in advance of the trial of the issues what apparently relevant evidence is unnecessary and what is necessary.

We have some reservations concerning the test ultimately enunciated by her Honour, as indeed, it appears, she had herself. The Santos (No 2) case was concerned with the issue of a subpoena duces tecum to a third party in proceedings under the Commercial Arbitration Act 1896 (SA). The documents sought were confidential documents. The third party alleged it had been denied the opportunity of arguing that the degree of confidentiality was such that the subpoena should be set aside on the basis of oppression. Its appeal was dismissed by a majority, with Debelle J dissenting. A perusal of his Honour's reasons reveals his dissent was based on the denial to the third party of the opportunity of having its application to set aside the subpoena heard and determined. In what appears to have been an obiter comment, he referred to the need, where a subpoena seeks production of confidential documents, for the court to determine "whether the documents are necessary for fairly disposing of the action", relying for that proposition on the decision of Rogers CJ in Arhill (supra). He agreed with Rogers CJ that that is "an appropriate criterion by which to approach applications to set aside a subpoena on the grounds of confidentiality and like issues on discovery and inspection".

In Arhill, Rogers CJ, on the authority of the English decisions in Science Research Council v Nassé [1979] UKHL 9; [1980] AC 1028 and Dolling-Baker v Merrett [1990] 1 WLR 1205, which were concerned with applications for discovery, production and inspection under the English Rules of Court, applied to an application for setting aside a subpoena duces tecum the same test as was applied in those cases to determine whether discovery should be ordered, that is to say, whether discovery was necessary for fairly disposing of the proceedings. At 556 he said:

"In Science Research Council v Nassé, the House of Lords held that relevance alone, though a necessary ingredient, did not provide an automatic test for ordering discovery. According to their Lordships, the ultimate test was, whether discovery was necessary for disposing fairly of the proceedings. I need to point out at once that, by the Rules of the Supreme Court (UK), O 24, r 13, it is specifically provided that no order for production of documents for inspection, or to a court, shall be made 'unless the court is of the opinion that the order is necessary, either for disposing fairly of the cause or matter, or for saving costs'. That, it seems to me, should be the criteria whereby courts should approach applications in relation to setting aside subpoenas, discovery and inspection. There should only ever be the one true guide. Obviously, if a document is not relevant, it cannot be necessary for disposing of the cause. Obviously, if the document does not open up a new line of inquiry, it cannot be necessary. But merely because it is relevant, or opens up a new line of inquiry, does not make it necessary.

Obviously, it is at times difficult to determine ahead of a trial what is 'necessary' to 'disposing fairly' of a cause. All lawyers have known of cases where the odd document, which might have seemed of tangential importance, made all the difference. On the other hand, more often than not, hundreds of documents will be searched for and produced that will be of absolutely no use."

There is no similar provision in the Rules of Court of this State to that of the English O24 r13.

It should be noted that Rogers CJ was sitting on appeal from a decision of the Prothonotary refusing to set aside subpoenas issued for service in Japan on the grounds that they were oppressive and an abuse of process. His Honour's reasons make clear that, although the companies sought to be served with subpoenas were ostensibly third parties to the proceedings, their relationship was such that, as he put it at 555, "No one but lawyers would call [the companies] third parties to this litigation" - they were related to the defendants (see also 557). His opinion can thus be seen as relating to parties to the action. In the end, however, his decision on the appeal was that the subpoenas were too wide "even applying the test of relevance". Rogers CJ did not refer to the decision in Waind's case.

In the present appeal, both parties accept the correctness of the test proposed by her Honour, although without reference to the caution expressed by her. That test, however, must be taken in the context in which it was expressed. Indeed, the necessity for having a document fairly to dispose of the issues at trial might well not become apparent before trial. It may, for example, only become apparent when it is used in cross-examination to refute unforeseen evidence given in chief. On the other hand, a document perceived to be so necessary before trial, in the end might be found to be unnecessary. In our view the expression "necessary" as used by Rogers CJ needs to be understood, at least in the present case, in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, in "fairly disposing of the proceedings", even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence.

Wheeler J examined the relevance of particular types of transactions identified in the materials before her and she concluded that three categories of documents were not of sufficient relevance to justify requiring their production in the arbitration proceedings. They consisted of transactions below a minimum quantity and transactions relating to "associated" gas, which is a by-product in oil production operations, which is not a reliable energy source and which is generally only available in small quantities. She also excluded coal purchases, having regard to the respondent's dominance of that market and its access to recent information and also because the coal transactions appeared to her Honour to be too remote from the arbitration issues to justify requiring the coal purchasers to produce documents in respect of them. Her Honour accepted that documents sought from the appellants in relation to Pilbara sales, off "spec" gas, the Goldfields pipeline, gas potentially available, segmented markets, costs of production and marketing strategies were sufficiently relevant.

In relation to Pilbara sales, her Honour accepted that, in some circumstances, gas which was sold and delivered in the Pilbara might be made available within the South West which, it will be recalled, is defined to mean the whole of the State except for the named municipal districts in the Pilbara. She also accepted that a "market price" would not merely take account of the state of the market at a particular moment but would also reflect the perceptions of sellers and buyers concerning what was possible, or likely, in the relatively near future.

In relation to off "spec" gas, her Honour accepted that although certain of the gas produced by some of the appellants was presently unsuitable, by reason of its specifications, for transmission through the Dampier to Bunbury natural gas pipeline, it could well be relevant that the issues in the arbitration apparently included the possible effect of a proposed second pipeline and the likely availability in the relatively near future of gas that could not be carried down the present pipeline, or at least could not be carried down the pipeline without treatment. It was submitted that the second pipeline, on the evidence before her Honour, was not a "proposed" but merely a "possible" development. Even if that be the case, however, it could well be a factor in fixing a future price, especially in long term contracts. Its impact would no doubt be the subject of expert evidence in the arbitration.

In relation to the Goldfields pipeline, it is claimed in the contentions in the arbitration proceedings that there is a possibility in the future of increased competition in electricity supply as a result of the deregulation of Goldfields electricity generators, who would generate their electricity from gas delivered to the Goldfields. Her Honour regarded this as clearly an issue for the arbitration. She also accepted as relevant the amount of gas which was potentially available for supply, as this could have an effect upon the market price of gas generally. As to segmented markets, her Honour was not prepared to accept the submission put forward on behalf of some of the appellants that each gas transaction was unique, and that it could not be said that any transaction would necessarily shed any light on the price which might be obtained in any other transaction. As her Honour observed, this was a matter of opinion. We agree that it was not susceptible of determination at this preliminary stage.

Her honour accepted that, in broad terms, prices of competitive products, costs of production of competitive products and materials indicating future market trends will be relevant to the arbitration. Her Honour accepted that the costs of production were also capable of being relevant to the market price, on her understanding that the contention of the respondent was that they were at a level which would enable prices to fall before the sale of gas became uneconomic. On this basis, she accepted that it was sufficiently relevant to the issues in the arbitration. The respondent, without inspection of the material documents, was not in a position to take the matter further at that stage. So far as the marketing strategies were concerned, her Honour confined the documents subpoenaed to a period of time which she considered reasonably related to the agreement between the respondent and the sellers. She accepted that the case of the respondent in the arbitration was that the market price was falling and that documents reflecting perceptions of the companies of "where prices may be headed" made the marketing strategies documents relevant.

It was contended for the appellants that it is the party seeking to uphold or issue a subpoena seeking documents who bears the onus of proving that the documents are relevant to the issues in the proceedings by admissible evidence. In support of that proposition, two authorities were cited, the Santos case (supra) and Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921. Neither supports the proposition. In the Santos case, the South Australian rules required the filing of an affidavit when a subpoena is sought under the Commercial Arbitration Act, "setting out the matters justifying its issue". The relevant part of that case was concerned with whether the requirements of the rule had been satisfied. The Spencer Motors case, if anything, is against the appellants - see at 924G, 926B to D. In our opinion, Wheeler J was entirely justified in having regard to the documents exhibited to Mr Andrusiak's affidavits in determining whether the documents sought from the appellants were sufficiently relevant. There was no requirement for the respondent to adduce further evidence.

It was argued for the appellants that the learned Judge erred in finding that the "mere raising" of an issue in a pleading in the face of incontrovertible evidence or, alternatively, evidence not controverted, was sufficient to establish the relevance of documents sought to be subpoenaed. The short answer is that her Honour made no such finding. What is really being contended, it would seem, is that, there being no evidence to the contrary from the respondent, her Honour was required to conclude that the documents were not relevant to the arbitration. The appellants' submissions identify the effect of the "uncontroverted evidence" as being, first, that there was no single gas market in Western Australia, but a gas industry with a high degree of market segmentation, as a result of which gas was not a homogeneous product, secondly, and consequently, that taking into account various influential factors, there was no compatability in price between the various segments and, as at 1 July 1996, no market price for gas in the South West, each gas transaction being a unique ad hoc transaction conducted in a highly secretive and confidential manner. It is clear from the respondent's claim in the arbitration that it challenges these assertions and seeks, with the assistance of the materials subpoenaed, to prove the contrary to be the case. It may not be able to do so without access to the documents sought by it from a number of gas suppliers.

The respondent's case in the arbitration depends in part upon its establishing that there were at the relevant time, market prices for the alternative energy sources in the South West which were, and are, capable of use for the production of electricity and its sale, namely, gas, coal and oil, and that the Prevailing Contract Price should not be higher than the lowest of the market prices. Questions as to the existence of markets, their extent and the determination of market prices can be of some complexity - see, for example, Queensland Wire Industries Pty Ltd v The Broken Hill Proprietary Co Ltd [1989] HCA 6; (1989) 83 ALR 577. Here again it would be quite unsatisfactory, if not impracticable, to endeavour to determine such matters as a preliminary point between the respondent and the appellants.

Some of the appellants' complaints arise out of the "rolled up" order made by Murray J, from which there has been no appeal and which, it seems, was made with the acquiescence of the parties. On objection being raised, her Honour was unable to examine any of the documents sought to be produced for inspection "to determine whether they appear relevant in the sense that they relate to the subject matter of the proceedings" or otherwise to test the degree of their relevance (see Waind's case (supra)). That placed her at a serious disadvantage. It appears from her Honour's reasons for judgment and from the manner in which the appeal was argued before us, that no objection was or is taken to her Honour's determination of relevance by reference to the documents annexed to the affidavits of Mr Andrusiak, and to the appellants' affidavit evidence. As her Honour said, "to determine these questions it is necessary to refer to the subpoenas proposed to be issued, to portions of the contract between the Woodside parties [the sellers] and Western Power, to the price redetermination notice [the Prevailing Contract Price Notice], and to the applicant's contentions in this arbitration." That finding by her is not challenged. The questions to which she referred were the jurisdiction to issue subpoenas, the relevance of the documents, issues of oppression, whether in the face of objection and the existence of oppression the documents are sufficiently relevant, and questions of confidentiality. She went on to make it clear that she had regard to the affidavits of the appellants in which "they outlined their reasons for believing that documents which they sought to protect were not relevant to those issues" and testified "as to the factual circumstances in relation to which those issues are to be understood, that is, as to the state of the market for coal and gas generally, and as to the manner in which the companies produce and distribute coal and gas". All that, it seems, provided the basis on which the parties accepted that her Honour should determine relevance. She did so. In the exercise of her discretion and, it would seem, generally on the basis of the affidavit evidence, she declined, for the reasons given by her, to order the production of documents relating to certain types of transactions as not being "sufficiently" relevant and set out her reasons for finding the remaining documents, in the face of the objections raised in those affidavits or by way of submissions, to be sufficiently relevant. She determined, however, that the proposed subpoenas should be further amended and she so ordered.

In the Santos (No 2) case, in the judgment of Perry J at 22, his Honour went so far as to suggest that, "generally speaking, a stranger to an action who is asked to produce documents will not be heard to object on the ground of relevance, as it is not appropriate for a non-party to peruse pleadings and the like and attempt to assess what may or may not be relevant to proceedings to which he or she is not a party". He added, "For similar reasons, it will be difficult for a third party to justify resistance to production on the ground that production is not necessary for disposing fairly of proceedings in which he or she is not otherwise involved". A similar view was expressed by White J in Casley-Smith v Council of Stirling (1989) 51 SASR 447, at 453-454. The respondent did not seek to maintain that position before Wheeler J, or before this Court, but the point still remains that, ultimately, the relevance of the material is for the arbitrator, and it is not appropriate at the present stage of the arbitration proceedings to embark upon a detailed preliminary inquiry involving evidence from the respondent and the companies against whom subpoenas are sought to be issued, although not from the sellers, as to whether the documents would ultimately be admissible in the arbitration. Without having the information contained in the documents, the respondent would be placed at a grave disadvantage in any such inquiry.

It has not been demonstrated that her Honour was wrong in being satisfied that, for the purposes of inspection, the documents the subject of the subpoenas as finally amended are necessary for fairly disposing of the proceedings. Whether or not it be the case that her Honour was required to be satisfied of no more than that the documents had apparent relevance in the sense set out in Waind's case, she found herself satisfied to a higher degree of relevance on the basis of the material before her, and we are not prepared to interfere with her decision on the question of relevance. In this regard, it is to be borne in mind that an appellate court is bound to exercise particular caution in reviewing decisions pertaining to practice and procedure - see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, at 176-177. It will not interfere simply because the Judges composing that court consider that, if they had been in the position of the primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the jurisdiction - see Lucas Industries Ltd v Hewitt (1978) 18 ALR 555, per Smithers J at 558. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties - see re the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318, per Jordan CJ at 323.

The next issue is that relating to confidentiality. There is, no doubt, some need in this matter to balance competing interests. In the end, however, the public interest in the administration of justice should prevail - "[T]he risk to the confidentiality of the information must be tolerated in the interests of the administration of justice", per King CJ in Alliance Petroleum Australia NL v The Australian Gas Light Company (supra), at 239, and see also at 238-239.

Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] VicRp 54; [1996] 2 VR 34 was a later case in which inspection was sought by the plaintiff, an unsuccessful tenderer, of tender documents held by the defendant. The defendant resisted inspection on the grounds of commercial confidentiality. The successful tenderers were given leave to intervene. At 38, Hayne JA, in whose judgment Winneke P and Phillips JA agreed, said:

"Where it is said that the documents are confidential, it may be accepted that the fact that the documents are confidential will not ordinarily be a sufficient reason to deny inspection by the opposite party. In most cases, the fact that the documents may not be used except for the purposes of the litigation concerned will be sufficient protection to the party producing them. But where, as here, the party obtaining discovery is a trade rival of the person whose secrets it is proposed should be revealed by discovery and inspection, other considerations arise."

His Honour went on to say that once the documents are inspected by the principals of the trade rival, the information which is revealed is known to the trade rival and cannot be forgotten. At 39, he continued:

"Where, as here, the problem is one of balancing the needs of a party to the litigation and the legitimate concern of a trade rival to retain secrecy of commercially sensitive information, it may well be necessary to mould orders that will distinguish between the plaintiff, its officers, its legal advisers and experts."

"It is now commonplace in the courts for material to be made available only to the legal advisers of the parties and nominated experts. Of course such arrangements bring with them their own difficulties and are arrangements that should be adopted only where there is a need to do so; of course they are arrangements that may need to be reviewed as the matter progresses towards trial or as the trial itself proceeds. But they are arrangements that are made and should be made when doing so would strike a fair balance between the competing interests of the parties seeking inspection and the party claiming confidentiality."

In the Santos (No 2) case, Perry J, at 18, also dealt with the issue of confidentiality. He said:

"Absent such a claim [an arguable claim for privilege or other legally recognised objection to production], the courts have consistently set their face against the assertion that documents are not liable to be produced because of their commercial sensitivity. It does not matter whether the argument arises in the context of inter parties discovery, discovery against a third party, or as is the case here, in the context of an application to strike out a subpoena directed to a stranger to the proceedings.

The stand which the courts have consistently taken is that there is no immunity from production attaching to documents only because of their commercial sensitivity, although where thought fit, the court or tribunal to whom they are produced will take all reasonable steps so far as is possible to keep such documents confidential."

"I have some difficulty in the suggestion that there can be degrees of confidentiality for this purpose. It seems to me that the weight of authority is overwhelmingly in favour of the view that however vigorously the claim for confidentiality is put forward, such a claim cannot amount to a ground upon which to strike out a subpoena, as opposed to affording a basis for the imposition of restrictions upon the use which may be made of documents once they are produced."

See also Hubbard v Hubbard [1948] VicLawRp 82; [1948] VLR 480 and Ex parte Fielder Gillespie Ltd [1984] 2 Qd R 339 , at 341."

Her Honour, rightly in our view, found herself unable to ascribe any public interest to the confidentiality of the documents in question in the present case, however much it may be in the appellants' individual interests. She did, however, accept that, although, standing alone, confidentiality is not a ground for refusing to issue, or for setting aside, a subpoena, it is a factor which is to be taken into account, together with those tests for oppression which are determined by reference to the breadth of the subpoena, the definition of documents involved and the type and degree of burden placed upon those to whom the subpoena is addressed. She also accepted that the relevance of the confidential documents being sought to the issues in the arbitration is a further factor.

Her Honour fully recognised the appellant's interest in the preservation of confidentiality. The provisions which she made to ensure the maintenance of that confidentiality, so far as reasonably practicable, were detailed, and there has been no suggestion to us that any additional provision should be made in this regard. We are not persuaded that her Honour was in error in her approach to the issue of confidentiality.

The final issue concerns oppression. In Hamilton v Oades [1989] HCA 21; (1989) 85 ALR 1, at 11, Deane and Gaudron JJ said:

"The power of a court to control and supervise its process to prevent injustice is not restricted to defined and closed categories: Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 639; Tringali v Stewardson Stubbs & Collett Ltd (1966) 66 SR (NSW) 335 at 340 and 344. In this context injustice is not simply a question of the purpose or motive for which the relevant proceedings were instituted but includes a consideration of the consequences of the proceedings for the person invoking the power. The terms "oppressive" and "vexatious" are often used to signify those considerations which justify the exercise of the power to control proceedings to prevent injustice, those terms respectively conveying, in appropriate context, the meaning that the proceedings are "seriously and unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment": Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 62 ALJR 389 per Deane J at 411."

This issue was also addressed by Clerke J in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710, at 719-720, where he said:

"If a court is called upon to rule that a subpoena is an abuse of process (ie oppressive) in this sense, it will need to carry out an exercise of judgment upon the particular facts in each case, including but not limited to the terms of the subpoena, bearing in mind the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant. If the needs of justice require or could require that a stranger be obliged to carry out a very burdensome task in the collection, transportation and production of a large number of documents, then a subpoena calling upon the stranger to produce those documents will be upheld."

See also the Santos case (supra) at 54-56, per Debelle J, and the authorities there cited.

There appears to be no doubt that compliance with the subpoenas, leave to issue which has been granted, will impose a heavy burden upon the appellants, a burden which will only partially be alleviated by their entitlement to the costs of complying with the subpoenas - see O36 r19. Her Honour gave consideration to the degree of oppression and indicated that some of the initial difficulties, in part at least, were cured as to undue width and the potential burden associated with the location of documents by the ultimate form of the subpoenas.

There were in fact a number of changes in the form of the subpoenas as originally drawn. The respondent reduced the scope of the documents being sought at a relatively early stage in the proceedings. It subsequently amended the proposed subpoenas to meet the appellants' arguments in the course of the hearing. Her Honour herself then made certain amendments to the subpoenas. It was argued for the appellants that there had been a breach of natural justice because some of the appellants had not been given an opportunity to call further evidence before the ultimate form of the subpoenas was determined. The ultimate form of the subpoenas constituted part of the decision of the learned Judge, having heard the evidence and the argument. No attempt has been made to place before us any facts which the appellants would have wished to place before her Honour, had they been given the opportunity to do so. We are not persuaded that the appellants have been prejudiced in any respect. They placed on affidavit their claims regarding oppression and this, together with the cross-examination of four of the deponents, led to successive amendments to the proposed subpoenas to accommodate the appellants' claims. In the end, we were not satisfied that the burden imposed upon the appellants outweighed the needs of justice.

Neither alone, nor taken together, did the appellants' claims regarding lack of relevance, confidentiality and oppression lead us to the view that there was any error of principle in the decision of Wheeler J. It was for the foregoing reasons that we dismissed the appeal.