[8] It has often been held that to serve a notice to produce, shortly before a trial, which imposes a considerable obligation and thus disruption on parties and practitioners already deeply immersed in the preparation for and conduct of the trial, may be unreasonable and vexatious [ Ritz Hotel Ltd v Charles of the Ritz Ltd (No 17) NSWSC McClellan J, 11 February 1988 unreported; Ishoe v David Sevities Pty Ltd NSWSC, Young J, 13 December 1991, unreported; cf Bidald Consulting Pty Ltd v Miles Special Builders Pty Ltd [2005] NSWSC 977]. This notice to produce is in that category. While that of itself might not be sufficient ground to set aside the subpoena, if the documents were of considerable apparent relevance, and were they documents which it was not reasonable to seek at an earlier stage it weighs in the balance when one comes to examine the question of relevance.
21 In the second authority, Portal Software v Bodsworth , his Honour said:
[20] However, relevance - or more accurately, lack thereof - is now a sufficient ground for setting aside a subpoena. In Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306; 88 ALR 90, Beaumont J approached the setting aside of subpoenas as oppressive on a basis which reveals that absence of apparent relevance is one of two separate bases for doing so: his Honour identified that on an application to set aside a subpoena as oppressive, two questions arose: first, whether the material sought had an apparent relevance to the issues in the principal proceedings - which his Honour called "adjectival" as distinct from "substantive" relevance - and thus the subpoena had a legitimate forensic purpose to that extent; and secondly, whether the subpoena was seriously and unfairly burdensome or prejudicial. Failure to satisfy either requirement resulted in the subpoena being set aside.
...
[24] In White v Tulloch (1995) 127 FLR 105, (1995) 19 Fam LR 696, (1995) FLC ¶ 92-640, the Full Court of the Family Court referred to the test in terms of documents having "a sufficient apparent connection to justify their production or inspection". But perhaps the most instructive description is that of Beaumont J in Arnotts , in which his Honour said that the test of adjectival relevance was satisfied if the material had apparent relevance and was established if the documentation called for "could possibly throw light on the issues in the main case". In a slightly different but related context, the test has been put in terms that a subpoena has a legitimate forensic purpose if it appears to be "on the cards" that the documents sought will materially assist the defence in a criminal proceeding [ Alister v The Queen (1984) 154 CLR 404, 414 (Gibbs CJ), R v Saleam (1989) 16 NSWLR 14, 18].
[25] Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings.
22 In A v Z and Another (2007) 212 FLR 255, Brereton J again considered applications to set aside subpoenas. His Honour examined the various tests formulated in a number of authorities with regard to the relevance of documents to determine whether those documents, or other material, should be the subject of a grant of access. His Honour preferred what was referred to as the "wide test" stated by Moffitt P in Waind and by Beaumont J in TPC v Arnotts . His Honour also relied on a decision of Hunter J in Brand v Digi-Tech [2001] NSWSC 425 in which Hunter J, after referring to the passage from Moffitt P in Waind at 385, said:
[36] I think it is indisputable that, if the subpoenaed documents are by their description arguably relevant or capable of providing a legitimate basis for cross examination on credit matters, then an application to set aside a subpoena on the grounds of irrelevance of the documents to the proceedings is misconceived. It is equally clear, in my view, that, if the description of the documents is such as to admit of a finding that the documents are manifestly irrelevant and incapable of touching matters of credit, then the issuing of such a subpoena represents an abuse of process.
23 After referring to the passage from Hunter J in Brand extracted above, Brereton J in A v Z formulated the test in the following way:
[19] ... Accordingly, I would approach the question primarily on the basis of asking whether, on the one hand, the documents called for are apparently relevant or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of subpoena, or whether on the other, they are manifestly irrelevant and incapable of touching matters of credit, in which case the subpoena would be an abuse of process.
24 The above authorities emphasise a number of matters applicable to the present proceedings. For present purposes it is sufficient to mention two. First, documents or materials to which access is sought at this preliminary stage by a party under a summons or notice to produce need only show, or be capable of showing, apparent relevance to an issue in the principal or main proceedings. To put it another way, access to documents and materials which are sought by a party may be granted where those documents or materials, "could possibly throw light on the issues in the main case". Secondly, documents or materials which are sought by a party, and to which access may be granted, must be sufficiently identifiable or of a sufficient description in order to admit of a finding that they are of apparent relevance to an issue in the principal proceeding.
13 Section 173(5) of the Act is particularly apposite for present purposes. It is expressed as follows:
(5) Before making an order for reviewable action, the Commissioner:
(a) must cause to be served on the police officer a notice that identifies the misconduct or unsatisfactory performance (including all relevant facts and circumstances) on the basis of which the Commissioner intends to make the proposed order, and
(b) must give the police officer 7 days from the date of service of the notice within which to serve notice on the Commissioner that he or she intends to make written submissions to the Commissioner in relation to the proposed order, and
(c) must take into consideration any written submissions received from the police officer:
(i) during the period of 7 days referred to in paragraph (b), or
(ii) if during that period the police officer serves notice on the Commissioner as referred to in paragraph (b), during the period of 21 days following the date on which that notice is served.