APPLICABLE LEGAL PRINCIPLES
10 The Court has an overarching jurisdiction to determine whether to permit inspection of documents produced on subpoena and if so, the terms on which inspection is to be allowed: r 24.20(3) of the Federal Court Rules 2011 (Cth) (FCR) provides that a person may inspect a document only if the Court has granted leave and the inspection is in accordance with the leave. By r 24.15(1) of the FCR, a party or any person having a sufficient interest, may apply to the Court to set aside a subpoena in whole or in part, or seek alternative relief in relation to it. The Court's power to set aside a subpoena is an incident of its inherent power to regulate the use of its processes by parties to the litigation: Mandic v Phillis (2005) 225 ALR 760 (at [38]).
11 In National Employers' Mutual General Insurance Association Ltd v Waind [1978] 1 NSWLR 372, the Court of Appeal set out the law and practice relating to the production and inspection of subpoenas (at 381):
(a) There are three steps in having a third party bring documents to court and their use thereafter:
(i) step 1 - obeying the subpoena, by the witness bringing the document to the court and handing them to the judge;
(ii) step 2 - 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; and
(iii) step 3 - admission into the evidence of the document in whole or in part; or the use of it in the process of evidencing being put before the court by cross-examination or otherwise.
(b) In these three steps the stranger and the parties have different rights, and the function of the judge differs.
The three steps in the procedure of having a third party bring documents to court, and in their use thereafter, have been confirmed in a number of subsequent cases, including Anderson Formrite Pty Ltd v Hornibrook Pty Ltd (No 3) [2009] FCA 273 (at [3]) and Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 (at 371).
12 It was said for Mr Brewer that there were numerous grounds on which a subpoena will be set aside, including if the scope of the subpoena is unreasonably wide (citing Horizontal Falls Adventure Tours Pty Ltd v Thomas [2009] FCA 639) and if the subpoena requires the addressee to make fine judgments as to whether or not documents fall within the subpoena (citing Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 (at 720-721)). It must be said that these principles in most part inform the grant of leave by the Court to issue subpoenas or the discretion of the Court to set aside a subpoena that is yet to be complied with.
13 In this instance, as the subpoena has been complied with, the relevant question is whether the subpoena has a legitimate forensic purpose by reference to the test of 'apparent relevance', as summarised by Wigney J in Gloucester Shire Council v Fitch Ratings Inc [2016] FCA 587 (at [22]):
"... The test for whether a subpoena has a legitimate forensic purpose has been put in terms of whether the material caught by the subpoena appears to have relevance in the sense of "throw[ing] light" on at least some of the issues in the principal proceedings ... It has also been said that it must be "on the cards" that the documents sought will materially assist the party at whose request the subpoena has been issued ... Slightly more prosaic statements of the test include that the documents must have some "apparent" or "adjectival" relevance, or would be reasonably likely to add, in the end, in some way or another, to the relevant evidence in the case ...
See also Apache (at [41]).
14 Further, in circumstances where a subpoena is issued at an early stage in proceedings where the issues have not clearly been defined, the Court must approach the question of relevance more flexibly. As Wigney J explained in Fitch (at [23]):
The common theme of these various statements of the applicable test of relevance in the context of subpoenas or notices to produce is that it is less stringent than the test of relevance that applies in the context of the admissibility of evidence. And where, as here, the proceeding is at a very early stage and the issues have not been clearly defined, the question whether documents sought by a subpoena have apparent relevance should not be approached too narrowly or rigidly. In such circumstances, the court should be wary of too readily excluding the possibility that a document or class of documents might at the end of the day be relevant to a fact in issue in the litigation. The court should not lose sight of the fact that the public interest requires that in the interests of a fair trial litigation should be conducted on the footing that all relevant documentary evidence is available ...
This was also the subject of explanation by the Court of Appeal in Apache (at [46]):
… In our view the expression "necessary" as used by Rogers CJ needs to be understood, at least in the present case, in the broad sense of embracing any document which has value, in the sense of at least apparent relevance, in "fairly disposing of the proceedings", even if it might not readily be seen, at the pre-inspection stage, necessarily to be admissible in evidence.
15 A subpoena may also be set aside where it is used for an impermissible purpose such as a fishing expedition. As Wigney J also explained in Fitch (at [24]):
… A finding of "fishing" amounts to a finding that the subpoena has no legitimate forensic purpose because the documents are sought to discover if the issuing party has a case, not to support a case that has already been articulated: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575. A finding of "fishing" also appears to involve a question of oppression. A subpoena will be more readily set aside if great numbers of documents are required to be produced in circumstances where it cannot be demonstrated that they are likely to be sufficiently relevant: Dorajay at [34].