A number of subpoenas duces tecum has been issued in this proceeding. In accordance with the usual practice of the Court, in the interests of justice, including the efficient preparation of the matter for trial, such subpoenas required the production of documents ahead of the date of trial.

On 30 October 1997 the matter was listed for hearing commencing on 4 May 1998.

This hearing commenced on 4 May 1998 and is continuing.

The subpoena was called upon before a Registrar of the Court at 9.30 am on 6 May 1998. The first respondent indicated that it did not have any documents to produce at that time. No application to set aside the subpoena was made or foreshadowed. Late in the morning of 6 May 1998, Mr Fowler was called to give evidence on the hearing. After his formal evidence in chief, I called on Mr Williams to commence his cross-examination of Mr Fowler. Rather than commencing his cross-examination, Mr Williams called on the subpoena. Mr Forster SC, counsel for the respondent, responded by seeking leave to file in Court first, a notice of motion seeking an order setting aside the subpoena and secondly, an affidavit in support of the foreshadowed motion. He further sought leave to amend the notice of motion to add an alternative claim that the applicants be refused access to any documents produced in answer to the subpoena.

Placing to one side the question of the appropriateness, in the circumstances, of the issue and service of the subpoena, the calling of a subpoena during the course of a witness's evidence is, in my view, plainly inappropriate. It is disruptive of the orderly conduct of the hearing and, moreover, likely to cause inconvenience to the witness. In this case I was obliged to excuse Mr Fowler from the witness box for an uncertain period of time to allow argument on the notice of motion. Even had the first respondent not sought to set aside the subpoena, time would have been taken attending to the formalities associated with the calling of the subpoena and the making of orders concerning access to the documents produced in response to the subpoena. Further delay would then, presumably, have ensued to allow the applicants' legal advisers time to inspect the documents produced in answer to the subpoena. A witness whose oral evidence has commenced should not ordinarily be expected to wait whilst such matters are attended to.

It was also inappropriate, in my view, for the first respondent to delay filing and serving its notice of motion and supporting affidavit until such time as the subpoena was called. Having been served with a subpoena which it considered an abuse of process, the first respondent ought promptly to have filed the notice of motion. Had it done so, a time for argument on the notice of motion could have been fixed which would not have disrupted the orderly taking of evidence.

I turn to the question of whether the subpoena should be set aside.

Neither counsel was able to refer me to any authorities of this Court directly on the issue of whether a subpoena may be served on a party to proceedings from whom discovery has or may be obtained. A subpoena addressed to a party is not necessarily bad (Trade Practices Commission v Arnotts Limited [1989] FCA 248; (1989) 88 ALR 90). On occasion such subpoenas are issued and answered without objection.

However, the usual legal processes by which a party to a proceeding in the Court obtains access to the documents of opposing parties are the processes of discovery and inspection. Where the Court has by detailed directions set a timetable for the undertaking of the procedural steps necessary to bring a matter to readiness for trial, including a timetable for the discovery and inspection of documents, it is to be expected that the parties will seek such documents "relating to any matter in question between [them]" as they wish to have access to through the process of discovery and inspection (O 15 r 2(2)). If such documents are sought by subpoena or notice to produce issued close to trial, the Court's endeavours to manage the process of the preparation of the matter for trial, and to ensure that no interlocutory issues are outstanding at the hearing date, may be subverted.

Order 15 rule 8 of the Federal Court Rules provides a procedure whereby particular discovery may be sought where a party is dissatisfied with the extent of discovery made by an opposing party. The discretion given to the Court by O 15 r 8, and the requirement that, before any order may be made under that rule, it should appear to the Court "...from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of [the] party", ought not, in my view, to be able to be avoided by the simple device of serving a subpoena duces tecum upon an opposing party.

In this case the applicants do not know whether the documents sought by the subpoena relate in any way to the matters in dispute between them and the first respondent. They concede the confidential nature of such documents. In the hope that something useful to their case might be found in such documents, their proposal was that I should read the documents. At the request of the applicant's counsel, the Court was shown three envelopes said to contain all but one of the documents the production of which was sought by the subpoena. The document not contained in an envelope was, the Court was informed, approximately ten pages long. The size of the three envelopes shown to the Court suggests that the task of reading all of the documents in them would be a not inconsiderable one. The rules of court do not place on judges the responsibility of determining for the parties which of their respective documents are required to be discovered. Judges have not traditionally assumed such a role. I do not consider that by choosing to issue a subpoena, rather than to seek an order pursuant to O 15 r 8 of the Federal Court Rules, a party should be able to achieve the result of placing such a responsibility on a judge. Moreover, in this case it would have been inappropriate for the conduct of the trial to have been further disrupted by my being required to read documents produced in response to a subpoena called during the course of the taking of evidence.

The applicants did not in their submissions in opposition to the motion to set aside the subpoena advance any justification for their failure to pursue the options of seeking further and better discovery, or particular discovery pursuant to O 15 r 8, from the first respondent. Nor did they advance any justification for the issue and service of the subpoena on a date sufficiently close to the commencement of the hearing to make it impracticable for the subpoena to be called before the trial commenced.

Nothing before me suggests that the documents the production of which is sought by the subpoena, are likely to have any significance to the applicants' case. In the unlikely event that, on inspection by me, they might have been found to have some relevance to the proceeding, I am confident that such relevance would have been sufficiently peripheral to the real issues in the case to ensure that the setting aside of the subpoena will not result in their suffering significant prejudice.

For the above reasons I concluded that the subpoena should be set aside pursuant to O 27 r 9 of the Federal Court Rules on the basis that it was an abuse of the privilege of requiring documents to be produced to the Court. In my view, had the subpoena not been set aside, it would have undermined the effectiveness of the steps taken by the Court to ensure the orderly and timely preparation of this matter for trial, including the orderly and timely resolution of issues relating to discovery and inspection of documents.

For completeness I add that I would have taken the same view of a notice to produce requiring the production of the same documents.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Decision herein of the Honourable Justice Branson.