legitimate forensic purpose
13 When issuing a subpoena, it is necessary to consider whether it is to be used for a legitimate forensic purpose. This will be informed by the relevance of the evidence sought to be produced: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 574-575.
14 In McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785; [2005] FCA 1233 at [35], Greenwood J helpfully set out the principles in relation to the granting of leave to issue subpoena:
In relation to the principles governing when leave ought to be granted to issue subpoenas, these principles emerge:
(a) A writ of subpoena duces tecum is competent against both a party and a stranger to the proceeding: Adelaide Steamship Co v Spalvins (1997) 24 ACSR 536.
(b) A request for a subpoena cannot be used to disguise an application for discovery of documents, or as an alternative to an application for further and better discovery. It is not permissible to use to a writ of subpoena duces tecum as a substitute for discovery of documents against a party to the proceeding. The subpoena process should not have the effect of discovery against a person who, as a stranger to the proceeding, is not liable to make discovery: Adelaide Steamship Co v Spalvins; Commissioner for Railways v Small (1938) SR (NSW) 564; Diddams v Commonwealth Bank of Australia [1998] FCA 9497. The subpoena process cannot be used to initiate an inquiry as to relevance outside of the time and place identified by the rules for discovery.
(c) Reference has already been made to the principles identified by Branson J in Diddams v Commonwealth Bank of Australia.
(d) The documents for production must be identified with reasonable particularity: Commissioner for Railways v Small (1938) SR (NSW) 564 at 574-5 per Jordan CJ. The category of documents must not be so wide as to be oppressive.
(e) The documents must be relevant to an issue raised on the pleadings and be used to elicit documents to support the applicant's existing case. It cannot be used for purposes of "fishing" or for the purpose of determining a preliminary question as to whether the party has a supportable case (Hennessy v Wright (1888) 21 QBD 509), or to investigate the character of the opposing party's evidence (Griebart v Morris [1920] 1 KB 659 at 666).
(f) The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand. In Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101, French J summarised the matters which are relevant to the grant of leave:
[8] It is not appropriate to be overly prescriptive in setting out criteria for the grant of leave to issue a subpoena. Plainly, the documents sought must have at least some apparent potential relevance to the matters in issue in the litigation. The assistance that the requesting party may derive from the production of such documents must be taken into account. Case management considerations are also relevant. A wide-ranging subpoena, seeking documents of doubtful relevance at great inconvenience to, or that risk compromising the commercial privacy of, a third party, may not readily attract the grant of leave. Where the issue of such a subpoena is likely to delay progress to trial because of the legitimate interests of a party in resisting its issue, that may also be a practical factor to be weighed.
(g) The same notion was expressed in Small (at 575) and Dorajay Pty Ltd v Aristocratic Leisure Ltd [2005] FCA 588 at [34] in requiring the existence of a legitimate forensic purpose for the production of documents.
(h) In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306; 88 ALR 90, Beaumont J said that the question of whether a subpoena should go can conveniently be addressed by reference to two questions. First, does the material sought by the subpoena have an apparent relevance in a descriptive or adjectival sense rather than a substantive sense? Does the subpoena have a legitimate forensic purpose to this extent from the perspective of the party issuing the subpoena? Second, does the subpoena cast a serious and unfair burden or prejudice upon the respondent to the subpoena?
(i) Spender J in Cosco Holdings Pty Ltd v Cmr for Taxation (1997) 37 ATR 432; [1997] FCA 1504 suggested that adjectival relevance looks toward the possibility whether the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings.
(j) When a party contends material that either is or may be or may have been in the possession, custody or power of a respondent relates to any question or issue raised on the pleadings, they will be taken to mean that the material is relevant in the sense contemplated by s 55(1) of the Evidence Act 1995 (Cth) namely, evidence that if accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. This is the substantive relevance of the material. The test for the issue of the subpoena is whether the material appears to have relevance in the sense of throwing light on at least some of the issues in the principal proceeding.
(k) The relevance of the documents must not be disproportional to any benefit that their production might have for the respondent: Dorajay at [34].
(l) A subpoena ought not issue in circumstances where it would unduly disrupt the conduct of the trial by requiring the court to read documents which could have been obtained at an earlier stage in the proceedings: Diddams v Commonwealth Bank of Australia [1998] FCA 9497.
(m) The issue of the subpoena must not, in all the circumstances be oppressive in terms of its impact on the recipient. That is, the issue of the subpoena must not be "seriously unfairly burdensome, prejudicial or damaging" and "productive of serious and unjustified trouble and harassment": Hamilton v Oades (1989) 166 CLR 486 at 502 ; 85 ALR 1 at 11 ; Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 ; 79 ALR 9 ; Seven Network Ltd v News Ltd (No 5) (2005) 216 ALR 147 at [12].
(n) The issue of a subpoena against a stranger to the proceeding is more likely to succeed later in the proceeding. Though there is no formal barrier to a subpoena to produce being returnable prior to the hearing, the document may well be premature where no trial date has been fixed. Where the proceeding is of considerable evidentiary complexity there is stronger force to serving the subpoena at an earlier stage: Hughes v Western Australian Cricket Association Inc (1986) 66 ALR 541.
(o) In Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [17], Stone J noted the observations of Waddell J in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921 at 927, summarising the views of Moffitt P in National Employers' Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372 to the effect that whether subpoenas are oppressive or an abusive process depends on whether "it is reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case". Her Honour said at [18]:
[18] These authorities show that the criteria by which one determines whether a subpoena should be set aside, in whole or in part, may be expressed in different ways but ultimately, they all come down to whether such action is required to prevent an abuse of the processes of the court to prevent injustice. As Deane and Gaudron JJ recognised [Hamilton v Oades (1989) 85 ALR 1 at 11] in the comments quoted by Beaumont J [in Trade Practices Commission v Arnotts Ltd], various terms may be used in focusing these concerns on the circumstances of a particular case. In this case, whether the documents are relevant (in the sense used by Beaumont J) will determine the issue provided that the requirements of the subpoena are not otherwise oppressive.
15 In Comcare v John Holland Rail Pty Ltd (No 5) (2011) 195 FCR 43; [2011] FCA 622 at [28] to [30], Bromberg J elaborated on the requirement of apparent relevance:
On an application for leave to issue a subpoena (or where a subpoena is sought to be set aside) the test for the existence of a legitimate forensic purpose is that of apparent relevance: Arnotts at 103. As Stone J said in Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 at [17], the general principles propounded by Beaumont J in Arnotts have been often applied or cited with approval. Her Honour noted the qualification expressed by Spender J in Cosco Holdings Pty Ltd v Cmr for Taxation [1997] FCA 1504. The import of what Stone J concludes at [16]-[18] is that apparent relevance to an issue is demonstrated where the material sought could reasonably be expected to throw light on the issue in the proceeding and not simply where the material "might permit a case to be made".
The test of apparent relevance has also been applied in relation to documents sought under a notice to produce. In Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31, Perram J by reference to the approach taken by Sackville J in Seven Network Ltd v News Ltd (No 11) [2006] FCA 174 at [6], posed the test as whether the documents sought are "reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case": at [3]. Perram J continued at [4]:
Reasonable likelihood is a different concept to reasonable possibility and, to my mind, connotes a degree of certainty as to the material's potential relevance that travels beyond the merely conjectural. It is to be distinguished from the tests applicable in discovery.
Perram J also noted that there are differences between the standard of apparent relevance required between discovery, subpoenas and notices to produce. His Honour observed at [9] (and I respectfully agree) that:
The discretionary differences between discovery, subpoenas and notices to produce constitute one of the reasons why the test of apparent relevance is tighter for subpoenas and notices to produce than the test of relevance for discovery.
16 As to the approach to be adopted, Mortimer J (as Her Honour then was) in Spencer v Commonwealth of Australia [2014] FCA 1234 stated at [13] and [14]:
As a starting point, I accept with respect the position adopted by Bromberg J in Comcare v John Holland Rail Pty Ltd (No 5) (2011) 195 FCR 43; [2011] FCA 622 at [28] that it is generally appropriate where there is a real question as to leave to issue a subpoena for the decision as to leave to adopt the approach which would be taken on an application to set aside a subpoena. In most circumstances, the lawful basis for a subpoena, whether as a proposed exercise of coercive power to give evidence, or as an actual exercise of coercive power to give evidence, should be approached in the same way.
This was the approach taken by Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785; [2005] FCA 1233 at [35], in relation to leave to issue a subpoena as to documents. There may be some distinctions in relation to witnesses in terms of discretionary considerations but in principle the approach is the same. With respect, I consider the matters outlined by his Honour at [35] represent the key considerations.