Applicable legal principles
42 The starting point is the provisions of O 29 r 6 itself. However, that rule does not address the issues argued on this application. Those issues arise from the common law, the starting point being the oft-approved statement by Jordan CJ in The Commissioner for Railways v Small (1938) SR (NSW) 564. It is germane in the light of the arguments here made to return to those first principles. At 573, Jordan CJ said:
"A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant: Lee v. Angus L.R. 2 Eq. 59; Burchard v. Macfarlane [1891] 2 Q.B. 241 at 247; A.-G v. Wilson 9 Sim. 526; Newland v. Steer 13 L.T. 111; 13 W.R. 1014. And if a subpoena duces tecum is issued to such a person in an objectionable form, the witness may apply to the Court to have it set aside."
At 574 he said:
"Where the subpoena is addressed to a party, it is still necessary that it should state with reasonable particularity the documents which are to be produced: A.-G v. Wilsons 9 Sim. 526 at 529; Earl of Powis v. Negus [1923] 1 Ch. 186 at 190. It is true that a party, unlike a stranger, can be required to give discovery; but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery."
At 575 he stated:
"In the absence of special circumstances, e.g. Griebart v. Morris [1920] 1 K.B. 659, a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of "fishing." i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all: Hennessy v. Wright 24 Q.B.D. 445 at 448, or to discover the nature of the other side's evidence: Griebart v. Morris [1920] 1 K.B. 659 at 666. Even if the documents are specified, a subpoena to a party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant: Steele v. Savory [1891] W.N. 195.
43 On this last mentioned issue of relevance Beaumont J in Trade Practices Commission v Arnotts Ltd & Ors (1989) 88 ALR 90 at 103 drew a distinction between adjectival relevance and substantive relevance. The former was relevant to answering the question of whether material sought in a subpoena has an apparent relevance to the issues in the principal proceedings. Expressed by him another way, it involves the question whether the subpoena has a legitimate forensic purpose to that extent: cf Re Federal Commissioner of Taxation; Ex parte Swiss Aluminium Australia Limited (1986) 68 ALR 587 at 590 per Beaumont J.
44 A common contention in relation to subpoenas is that they are oppressive. A subpoena will be oppressive "if it places on the person to whom it is addressed an obligation to form a judgment as to which of his or her documents relate to issues between the parties": Finnie v Dalglish [1982] 1 NSWLR 400 at 407 per Rath J; Adelaide Steamship Company v Spalvins (1997) 24 ACSR 536 at 545 - 546 per O'Loughlin J, unaffected on appeal: see Adelaide Steamship Co Ltd & Anor v Spalvins (1998) 81 FCR 360. Whether a subpoena is oppressive will be determined by considering whether the demand is, for relevant purposes, too wide or uncertain or whether the terms of the subpoena convey to the recipient in relatively clear language the documents or class of documents called for: Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984) 1 NSWLR 710 at 720 - 1 per Clarke J, cited by O'Loughlin J in Adelaide Steamship Co v Spalvins at first instance.
45 The submissions for the Chapmans make further citation of authorities in relation to these principles. On the question of "fishing" reliance was placed upon Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (1998) ATPR 41-659 at 41338 where Foster J accepted both that the class of documents sought in the subpoenas in issue were sufficiently identified in the wording of the subpoenas to prevent them being characterised as a substitute for discovery (Lucas Industries Limited v Hewitt & Ors (1978) 18 ALR 555) and that the issue of the notice to produce and the subpoenas could be seen to answer a legitimate forensic purpose. Attention is also drawn in the submissions for Chapmans that where discovery has occurred that is a factor to take into account in considering whether the scope of the proposed subpoena is based on pure speculation: cf Garden City Traders Association Ltd v Brisbane City Council (1972) QDR 82 at 86 - 87. For the Commonwealth respondents the point is made that in that passage reference was made to the existence of an affidavit of discovery which had no equivalent here. However, I accept that the scope of the discovered documents is a factor to which regard must be had. That much was accepted for the Commonwealth respondents during the course of the hearing in accepting that there should be excepted from the scope of the proposed par 11 in the subpoena to the Chapmans those media releases and media documents made available in the course of discovery in the principal action and relating to the Chapmans. Other authorities relied upon for the Chapmans to characterise the nature of "fishing" were Associated Dominions Assurance v John Fairfax (1952) 72 WN (NSW) 250 at 254; New South Wales Commission v Hawes (19920 74 ACRIMR 199 at 202 - 203 and Alister v R (1984) 154 CLR 404 at 414 and 438 - 439.
46 In relation to the issue of subpoena to a non-party the submissions for the Chapmans advance the principle that a subpoena, not being a substitute for discovery, may not be issued to a non-party not called as a witness to produce a document unless that document is itself admissible in evidence by a witness other than the person upon whom the subpoena is served. That is a statement which appears in Butterworths Practice and Procedure High Court and Federal Court, page 53221, par 43, 485. It is supported by reference to Elder v Carter (1890) 25 QBD 194; Burchard v Macfarlane [1891] 2 QB 241; Commissioner of Railways v Small; O'Born v Commissioner for Government Transport (1960) 77 WN (NSW) 81 and McAuliffe v McAuliffe (1973) 4 ACTR 9. Reference to McAuliffe at p 12 shows that Blackburn J stated that principle and supported it by reference to those same authorities without citing any particular pages. Indeed, he added "I am aware that none of these authorities is precisely in point". McAuliffe's case was considered in National Employers' Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 at 381 by Moffitt P with whom Hutley and Glass JJA agreed. He there decided that the decision in McAuliffe's case ought not to be followed. It was in that context that he made the following oft-cited statement:
"As Jordan C.J. pointed out in Small's case (1938) 38 S.R. (N.S.W.) 564, at p. 574; 55 W.N. 215 and as appears in Burchard's case [1891] 2 Q.B. 241, at pp. 247, 248 there are at least two steps in the procedure of having a third party bring documents to court, and in their use thereafter. Indeed, on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs."
It follows that the alleged principle relied upon for the Chapmans is not to be taken into account in resolution of the present issue.
47 On the issue of relevance it is appreciated in the submission for the Chapmans that it is not for this Court on this occasion to finally determine that issue. However, it is submitted that the Court should have in mind the principles by which relevance is determined in order to resolve the question whether the subpoenas against non-parties are to be regarded as of a speculative character and in the nature of fishing. The first such principle is that in determining whether a costs order will be made against a non-party the mere fact that they may have benefited from the litigation or provided "the sinews of war" will not be sufficient: Vestris v Cashman (1998) 72 SASR 459 at 457 and Montague Mining Pty Ltd v Gore & Ors (trading as Clayton Utz) [2001] FCA 791 at pars [53] and [57]. Secondly, reference is made to the principle that if no security for costs has been sought against a party, at the end of the proceedings an order for costs should not be made against a non-party because the party, against whom security was not sought, is a man of straw: Knight at 191; Vestris at 457 - 458.
48 The submissions for the Commonwealth respondents directed attention to the decision of the Full Court in Bailey & Ors v Beagle Management Pty Ltd & Ors (2001) 182 ALR 264. That was a case where respondents sought security of costs by way of motion and served a notice to produce to an applicant requiring production of financial documents. The applicant filed a motion to set aside the notice to produce as fishing and an abuse of process. The Full Court (Heerey, Branson and Merkel JJ) refused leave to appeal from the decision of the primary judge (Goldberg J). In his reasons, Goldberg J accepted that Commissioner for Railways v Small was authority for the proposition that where a subpoena or a notice to produce is served to obtain evidence to support a parties' case then the subpoena or the notice to produce will not be regarded as fishing or as an abuse of process or as vexatious and will not be set aside. Rather that will only occur where a party is in fact seeking to discover whether the party has a case at all.
49 Three aspects of the reasons of the Full Court are relied upon. The first is the statement by the Full Court rejecting any rule that for a notice not to constitute fishing the material relied upon by the respondent in support of the notice should give rise to a reasonable apprehension that the corporation may be unable to pay the costs of the respondent if successful in defence: Bailey at 269 par [22]. The Court preferred no rigid criteria and said that the judge must be satisfied that the documents the subject of the notice are specified with reasonable particularity and are properly being sought to advance the case to be put by the applicant: Bailey at 270 par [24].
50 Additionally, fishing could not be found to exist where the documents sought by the notices to produce in fact exist, in that case being standard financial documents: Bailey at 270 par [26].
51 Thirdly, the Court had regard to substantial rethinking in the court in recent years in relation to discovery before action and the provisions of O 15A r 6. It said these expressly contemplate that what once might have been castigated as fishing was now contemplated by the rule: Bailey at 270 par [27].