REASONS FOR JUDGMENT
1 The issue with which I am now dealing is limited in its compass. It is whether or not a subpoena dated 12 October 2009 should be set aside. The subpoena in question was issued at the request of the first applicant, Jack Brabham Engines Limited, to the Chief Commissioner of the Victorian Police. It seeks the criminal history records of Stylianos Eleftheriadis. Mr Eleftheriadis is the second respondent in the proceedings. I have made the point that the only issue with which I am dealing presently is whether or not the subpoena should be set aside. It is important to make this clear at the outset.
2 Authorities in relation to the question of subpoenas make clear that there are a number of stages in the process. First, there is the question of leave to issue the subpoena. Second, there is the question of any application to set aside the subpoena on grounds such as those on which the respondents rely in the present case. Third, there is the question whether there should be any order for access and, if so, the terms and conditions of any order for access over and above the usual undertaking that is implied in relation to the grant of access to documents produced pursuant to a subpoena, namely, that the documents may be used for the purpose of the proceedings and for no other purpose. Fourth, and separately, there is the question whether any particular document produced under the subpoena is admissible as evidence in the proceedings.
3 In the present case, the respondents seek to set aside the subpoena on three grounds. The grounds are interconnected. First, the respondents contend that the subpoena has not been issued for a legitimate forensic purpose. Second, they contend that the subpoena involves a fishing expedition in the sense that it is purely speculative as to what the documents produced, if any, might contain. Third, the respondents contend that it should be inferred that the subpoena has been issued for a collateral or improper purpose. They contend that it is improper (in the strict legal sense and not by reference to any supposed subjective intention of the applicants) to issue a subpoena for the purpose of ascertaining whether or not there are in fact any documents as described in existence where, ordinarily, a person or persons in the position of the applicants would have no such right.
4 The applicants contend that the subpoena was issued for a legitimate forensic purpose. The forensic purpose is the credit of Mr Eleftheriadis which is directly in issue in this proceeding. They say that they are entitled to cross-examine as to credit provided that the tests of admissibility for evidence relevant to credit (set out in ss 102 and 103 of the Evidence Act 1995 (Cth)) are satisfied. Section 102 provides that credibility evidence about a witness is not admissible (the credibility rule). However, s 103 provides that the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.
5 I accept that Mr Eleftheriadis's credit is in issue in this proceeding. It is apparent from the evidence which either has been admitted thus far or has been admitted subject to rulings on objections as to its admissibility that the credit of many of the witnesses in this matter will or at least could be of significance to the ultimate resolution of the factual and legal issues in dispute. Accordingly, the starting point is that Mr Eleftheriadis's credit must be accepted to be a material (indeed, a significant) issue in this proceeding.
6 The respondents relied upon Alister v The Queen (1983) 154 CLR 404, in particular the passages at 438-439. My concern about the passages relied upon by the respondents is that they are primarily concerned with the balancing exercise that a court must perform when an issue of public interest immunity is raised. That being so, I do not consider Alister at 438 to be the best source of the tests relevant to an application to set aside a subpoena on the grounds that the subpoena is nothing more than a fishing expedition or does not have a legitimate forensic purpose.
7 The respondents also relied upon Dorajay Pty Limited v Aristocrat Leisure Ltd [2005] FCA 588 at [16]-[18] and also [30]. In [16] Stone J summarised the relevant principles, quoting Beaumont J in Trade Practices Commission v Arnotts Limited (1989) 88 ALR 90 at 102-103 to the effect that the issue of a subpoena for other than a legitimate forensic purpose is itself an abuse of process and thereby a sufficient ground for the subpoena to be set aside. Beaumont J identified the first critical question in any such case as follows:
Does the material sought have an apparent relevance to the issues in the principal proceedings, i.e., is adjectival, as distinct from substantive relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the party issuing the subpoena].
…
The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established.
8 At [17] Stone J cited Spender J's decision in Cosco Holdings Pty Limited v Federal Commissioner of Taxation [1997] FCA 1504, in which his Honour commented on Beaumont J's observations as follows:
Notwithstanding the use of the word "possibly" in this paragraph, in my opinion, that word is not used in any speculative sense. I take his Honour's conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made.
9 I accept the respondents' submission that the test for the existence of a legitimate forensic purpose is that of apparent relevance as described in [16]-[18] in Dorajay.
10 The critical matter, however, is that this application squarely raises the question of whether or not it is proper for a subpoena to be issued for documents relevant only to the credit of a party and a witness in the proceedings. This very topic has been the subject of relatively extensive judicial consideration. It is essential to have regard to cases directly dealing with this issue in order to answer the question which has been raised. I turn now to those cases.
11 In Fried v National Australia Bank Limited (2000) 175 ALR 194; [2000] FCA 911 Weinberg J addressed the question whether or not there could ever be a legitimate forensic purpose in the subpoena of documents from a third party for the sole purpose of an attack on the credit of a key witness. His Honour analysed the question and said this at [24]:
I accept, for present purposes, that it may be legitimate to issue a subpoena directed to a third party in order to obtain documents which are to be used solely to impeach the credit of a witness. There is authority for that proposition - see In Re Emma Silver Mining Co (1875) LR 10 Ch App 194 at 197; Lucas Industries Ltd v Hewitt (1978) 18 ALR 555; R v Saleam (1989) 16 NSWLR 14 at 19; Carter v Hayes (1994) 72 A Crim R 387 at 389; and Hunt and Boyce v Judge Russell (1995) 63 SASR 402 at 410.
12 His Honour noted (at [25]) that there were some statements of principle that a subpoena may not be issued solely for that purpose, but clearly accepted in the preceding paragraph that the weight of authority favoured the contrary view. In the particular case, however, his Honour set side the subpoena. At [27] his Honour said:
It seems to me that the Court should exercise particular caution in permitting the use of subpoenas in order to obtain documents of this type. The Court should scrutinise carefully any subpoena directed towards the production of documents which are relevant to credit only, particularly when the documents are said to bear only upon matters which go to credit, and which are wholly unrelated to the issues in dispute. It must be remembered, of course, that a subpoena may not be used as a substitute for discovery from a party or to obtain discovery from a third party.
13 At [28] his Honour referred to s 102 of the Evidence Act and the limits on cross-examination as to credit. He said (and I endorse) the following:
Lengthy cross-examination, particularly cross-examination going only to credit, is responsible for much of the delay and unwarranted cost typically associated with modern litigation. Cross-examination as to credit should be kept, so far as possible, within proper bounds.
14 At [29]-[30] Weinberg J expressed the reasons for his conclusion in the particular case in these terms:
[29] It is not appropriate, in my view, for a Court to permit a subpoena to stand which does little more than trawl for documents which may be used to impugn the credit of a particular witness. This is particularly so when the documents sought have nothing to do with any of the issues in dispute in the proceeding. The Court must be alert to ensure that any subpoena which is issued has a legitimate forensic purpose. That purpose must be identifiable, and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness.
[30] The explanation given as to the purpose for which the documents identified in the subpoena were sought was altogether too vague and unsatisfactory to persuade me of its legitimacy. It is not a legitimate use of a subpoena to have the specified documents produced in a speculative attempt to identify whether the documents might, ultimately, be of some evidential value. It was for these reasons that I order that the subpoena be set aside.
15 A more liberal approach, however, has been taken in other cases which turned on their own facts. In Brand v Digi-Tech (Australia) Ltd [2001] NSWSC 425 at [36] Hunter J observed that:
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.
16 In Comcare v Maganga (2008) 101 ALD 68; [2008] FCA 285 Bennett J considered the same issue. At [31] Bennett J referred to the decision of Weinberg J in Fried. Her Honour said that the subpoena in Fried was "issued to capture documents which might have shown that two non party companies had lodged income tax returns without fully declaring interest earned". However, the substantive proceedings between the parties in Fried did not concern alleged under-reporting of income tax. Accordingly, Bennett J said that the documents in question in Fried related not only to a credit issue, but also an issue unrelated to the issue in the proceedings. It was this, her Honour said, that enabled Weinberg J to conclude that the documents sought were "wholly unconnected" to the issues. In Maganga, however, as her Honour's reasons in [32] disclose, Fried was distinguishable. Mr Maganga's credit, he being a party to the proceeding, constituted the main issue in the proceeding. Bennett J accepted that there should be a legitimate forensic purpose in seeking the relevant documents which purpose "must be identifiable and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness" (citing Fried at [29]) but found, in the circumstances, that the documents in question fulfilled those criteria.
17 In Australian Securities and Investments Commission v Whitlam (2002) 42 ACSR 143; [2002] NSWSC 526 at [4], Gzell J dealt with the issue. His Honour usefully referred to the observation of Owen J about fishing expeditions in Associated Dominions Assurance Society Pty Ltd v John Fairfax and Sons Proprietary Limited (1955) 72 WN (NSW) 250-254 as follows:
A "fishing expedition", in the sense in which the phrase has been used in the law, means, as I understand it, that a party who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not.
18 In Whitlam Gzell J also distinguished the decision of Weinberg J in Fried. At [6] Gzell J said:
In my view the instant circumstances differ from those considered by Weinberg J. While the expurgated portions of the transcript relate to matters not the subject of the present proceedings, they do relate to the conduct of the defendant with respect to the companies the subject of the matters before the court. Integral to the plaintiff's case are the assertions of Messrs Dempsey and Talbot [I interpolate, two witnesses in the case]. If they have a propensity for unbalanced and irrational statements and they lack objectivity and display unreliability, those are matters which would give the court grounds for concern.
19 Hence, the subpoena was not set aside as invalid.
20 Perhaps most useful in the present context is the decision of Brereton J in Liristis v Gadelrabb [2009] NSWSC 441. The case concerned the question whether or not there was an oral contract for the sale of land. Brereton J described the case as one where the evidence was simply word against word. The defendant issued a subpoena to the Police Commissioner, seeking production of the criminal records of both of the plaintiffs. A notice of motion was filed seeking to set aside the subpoena, contending that there was no legitimate forensic purpose with the consequence that the subpoena was an abuse of process. Brereton J observed that the respective credit of the plaintiff and his father, on the one hand, and the defendant on the other, would be important and probably determinative of the proceedings. He accepted that the existence of a conviction for dishonesty would be relevant to the question of credit. He continued at [4]:
Moreover, even documents which, though not evidencing a conviction for dishonesty, enabled a party to establish or tend to establish that the other had made false statements when under an obligation to tell the truth, could legitimately provide the basis for cross-examination as to credit…
21 Brereton J also made these important observations consistent with authority at [7]:
It is not necessary for a party called upon to sustain the relevance or the propriety of a subpoena to show that there is likely to be a document in every category of that called for by the subpoena. Were it otherwise, the pursuit of relevant evidence would be unduly constrained by a requirement to craft subpoenas which were so narrow in their scope that relevant documents easily escape its reach. In short, there is reason in this case to think there are documents relating to convictions for dishonesty, and in particular perjury, in relation to Mr Tony Liristis; and there is a legitimate forensic purpose for the issue of the subpoena in terms in which it is expressed in that respect.
22 Accordingly, Brereton J refused to set aside the subpoena in relation to Tony Liristis. The position in relation to Tasos Liristis, however, was different. His Honour said at [8]:
…there is no evidence before me on this application, nor any reason to suppose that there would be any such documents in existence. I readily accept that documents that tended to show that Mr Tasos Liristis had been guilty of an offence of dishonesty would be the legitimate object of a subpoena, for the purposes of impugning his credit. I also accept that not much evidence would be required to show sufficient reason to justify a subpoena couched in relatively narrow terms for such documents. Even some basis for a suspicion - as slight as some instruction from a client that the client believed that the person in question had been prosecuted for such an offence - might suffice. But in this case there is absolutely nothing to suggest, nor any reason to suppose, that there are any such documents in existence as far as Mr Tasos Liristis is concerned. In respect of him, the subpoena is therefore, nothing more than a fishing expedition to see whether any such documents are in existence.
23 Having regard to these decisions, I take the relevant principles to include that the test for legitimate forensic purpose is apparent relevance. However, it is not the case that a party issuing a subpoena must be able to establish that there will be a document necessarily produced in answer to the subpoena. It is not a fishing expedition merely because a party does not know whether a document will be produced in answer to a subpoena. Moreover, a subpoena can be issued to a third party to obtain documents relevant only to a witness's credit if the credit of that witness is in issue in the proceedings. However, given the limits on evidence relevant only to credit, courts scrutinise such a subpoena carefully to ensure that there is no abuse of process. At one end of the scale, courts ask whether the documents sought are manifestly irrelevant and incapable on touching matters of credit (see Hunter J in Brand at [36]). At the other end of the scale, courts ask whether the documents have a purpose which can be described as "identifiable and likely to facilitate the conduct of the proceeding, not merely to oppress a party or witness" (see [29] of Fried).
24 As noted, I find the approach of Brereton J in Liristis particularly useful. His Honour accepted, as I accept in this case, that the credit of the person to whom the subpoena related is directly in issue. His Honour did not accept the fact that there may be no documents in answer to the subpoena to be a sufficient reason to characterise the subpoena as a fishing expedition. His Honour considered the issues and evidence in the particular case and asked whether there was any evidence capable of suggesting that the criminal records in question might disclose an offence for dishonesty. In this regard, I note that dishonesty is not the only potentially relevant attack on credit. For example, in Whitlam at [6], Gzell J referred to the assertions of certain witnesses potentially satisfying the rules for the admission of propensity or tendency evidence.
25 There have been extensive objections to evidence in this case. With the consent of the parties (for the most part) I have taken the approach that I should rule on the majority of the objections to evidence in my final decision. Despite the uncertain status of the evidence subject to objection, I am satisfied that the subpoena in dispute cannot be set aside for lack of a legitimate forensic purpose. First, Mr Eleftheriadis is a party to this proceeding. Second, Mr Eleftheriadis is a critical witness in this proceeding. Third, it is beyond question that Mr Eleftheriadis's credit (along with the credit of many other witnesses) is directly relevant to the resolution of the issues in this proceeding. Fourth, there is evidence (to which I recognise unresolved objection has been taken) relating to conduct of Mr Eleftheriadis potentially involving the police and alleged offences which, consistent with the approach in Whitlam, would or could be of apparent relevance to the matters between the parties in this case.
26 For these reasons, and consistent with the authorities to which I have referred, this subpoena is not invalid. It is not one for an illegitimate forensic purpose. It is not a subpoena which does nothing more than fish for documents. Accordingly, the application to set aside the subpoena must be dismissed.
27 I accept, however, that there might be other issues upon which I will have to rule. I have in mind that orders for access are capable of being framed to ameliorate potential prejudice to a person or party, some of which have been raised by the respondents. Further, nothing I have said about refusing to set aside the subpoena may be taken as involving any determination of the admissibility of documents produced in answer (should any such documents exist). Nor can the validity of the subpoena bear upon the propriety of the asking of any question in cross-examination which might not meet the tests for admissibility of evidence relating only to credit or only for a tendency or propensity purpose.