EVIDENCE - subpoena to produce documents - too broad - oppressive - whether should be set aside - schedule to subpoena reformulated under Court Procedures Rules 2006 ACT), r 6604.

Court Procedures Act 2004 (ACT)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.5, ss 40Q, 59, 60, 61

Criminal Procedure Act 1986 (NSW), Chpt 6, Pt 5, Div 2

Evidence Act 1906 (WA), ss 19A-19M

Court Procedures Rules 2006 (ACT), Pt 6.2, Div 2.8.7, rr 4706, 6604, 6605

Uniform Civil Procedure Rules 2005 (NSW), r 33.4

Wood P M, "Challenging Subpoenae Ducas Tecum: Is There a Third Party View" [1984] SydLawRw 7; (1984) 10 Syd L Rev 379

Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98

Commissioner for Railways v Small (1938) 35 SR (NSW) 564

R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681

Re McInnes [2009] ACTSC 29

National Employer's Mutual General Association Ltd v Waind and Hall [1978] 1 NSWLR 372

Hardie v Cooke [1990] 2 Qd R 351

Alliance Petroleum Australia (NL) and Ors v Australian Gas Light Co (1982) 44 ALR 124

Lucas Industries Ltd v Hewitt and Ors (1978) 18 ALR 555

Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536

1. Pursuant to r 6604, the schedules in the subpoenas addressed to:

1. [a named counsellor]; 2. the Deputy Principal, [the complainant's] school;

1. the Proper Officer, Department of Disability, Housing and Community Services; 2. [the complainant's father]; and 3. Ms Kristy Ann Scott of the Australian Federal Police;

be set aside and replaced with the respective schedules set out in the document initialled by Refshauge J and dated by him 23 July 2009 and placed on the court file.

2. The addressees be permitted to deliver the documents referred to in the replacement schedules to the Registrar of the ACT Supreme Court by 9.30 a.m. on Monday 27 July 2009 in compliance with the subpoena or to attend in person at 10.00 a.m. on 27 July 2009.

3. The addressees to each of the subpoenas referred to in order 1 above be contacted today as follows:

by facsimile: the Proper Officer Department of Disability, Housing and Community Services

by letter sent by ordinary post: [the complainant's father]

1. In the contact referred to in order 3 above, the accused's lawyer is to advise:

1. That the schedule of documents required by the subpoena to be produced by each addressee has been set aside by order of the ACT Supreme Court and replaced by that order with a narrower list of documents to be produced.

2. That the schedule of documents the relevant addressees are required to produce is attached.

3. That the time within which the addressee may deliver the documents to the court without the need to attend personally is extended to 9.30 a.m. on Monday 27 July 2009.

4. That if the addressee wishes to object to the production of any document, the addressee must attend personally at the Supreme Court on Monday 27 July 2009 at 10.00 a.m.

5. That if the addressee wishes to produce the documents in person that are required to be produced, the addressee may attend personally at the Supreme Court on Monday 27 July 2009 at 10.00 a.m.

6. Otherwise, the addressee remains bound to comply with the subpoena as amended by the attached schedule.

1. The accused's lawyer is to attach to each communication referred to in orders 3 and 4 above the relevant schedule referred to in order 1 referable to the respective addressee and, where required, a copy of ss 54 and 55 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT).
2. The proceedings be listed at 10.00 a.m. on Monday 27 July 2009 for the purpose of the accused calling on the subpoenas.
3. The accused's lawyer forward to the Director of Public Prosecutions a copy of each communication referred to in orders 3 and 4 above by 10.00 a.m. on Friday 24 July 2009.
4. In the circumstances, the accused's solicitor's failure to contact [the complainant's father] yesterday be excused.
5. The accused's lawyer is to file and serve a Notice of Solicitor Acting (Supreme Court Criminal Proceedings) - Form 4.4.

1. The accused is to stand trial on an indictment containing five counts charging him with sexual offences against a young girl.

2. On 22 and 23 July 2009, I made certain orders and directions in relation to some subpoenas and announced that I would give my reasons later. These are my reasons.

3. The accused is represented by a solicitor who has practised in this Territory for a number of years. Although he has not filed a notice under Rule 4706 of the Court Procedures Rules 2006 (ACT) (the Court Procedures Rules) being a Notice of Solicitor Acting (Form 4.4 of the Approved Forms, being a prescribed form, under the Court Procedures Act 2004 (ACT) - AF2006-378), he has filed at least one application in these proceedings in which he has given a Canberra address as the address for service in the footer of the application in proceedings.

4. It is appropriate that the omission to file a Notice of Solicitor Acting be rectified and I directed that the form be filed. That form was filed on 28 July 2009.

5. On 9 July 2009, the accused, through his solicitor, sought to have issued six subpoenas to produce documents. They were addressed to:

(i) the Proper Officer, Department of Disability, Housing and Community Services;

(ii) the Deputy Principal of [the complainant's] school;

(iv) [a named counsellor] school counsellor, [the primary] school;

6. Each subpoena sought identical material. The schedule of each read:

Schedule

The documents and things you must produce are as follows:

1. All notes, records, entries, communications, files; including -

All telephone and visitor logs;

All records of examinations, including medical and/or psychological examinations;

All computer records and/or files;

All interviews with youth workers, counsellors, school officials, police, medical and/or health workers -

Concerning [the complainant] and/or [the accused] and/or the investigation of allegations by [the complainant] of assaults being committed upon her;

1. All diaries and/or pages of diary and/or entries and/or notes kept by [the complainant] during the period 2000 to date;
2. All computer storage devices, including all discs, DVD's and floppy discs belonging to [the complainant] and/or used by [the complainant] [the complainant's address] during the period 2000 to date;
3. All computers and/or computer devices used by [the complainant] at [the complainant's address] during the period 2000 to date; and
4. All invoices and/or accounts for and/or relating to internet access and/or usage at [the complainant's address] during the period 2000 to date.

7. The form of subpoena is also a prescribed form, namely Form 6.10 under the Court Procedures Act 2004 (ACT) - AF2008-147 (which replaced AF 2006-418 which the accused's lawyer actually used). The form provides alternatives to constitute it as a subpoena to give evidence only, a subpoena to produce documents only or a subpoena to give evidence and to produce documents. Where it is a subpoena to produce documents only, Part B of the form is relevant. The prescribed form specifically permits the addressee the common and now well established alternatives either to attend personally at court and produce the documents or to deliver them not less than two days prior to the return date. Part B is in the following terms:

B. Details of subpoena to produce only

You must comply with this subpoena -

(a) by attending to produce this subpoena or a copy of it and the documents or things stated in the schedule below at the date, time and place stated for attendance and production; or

(b) by delivering or sending this subpoena or a copy of it and the documents or things stated in the schedule below to the Registrar (or, for an arbitration under the Commercial Arbitration Act 1986, the *[arbitrator/umpire]) at the address below so that they are received not less than 2 days before the date stated for attendance and production. (see notes 5-11)

Date, time and place at which you must attend to produce the subpoena or a copy of it and documents or things (unless you are given notice under rule 6603A of a later date or time to attend) -

Date:

Time:

Place:

Address where the subpoena (or copy) and documents or things may be delivered or posted -

If you are given notice under rule 6603A stating a date or time for attendance or production or both, you must attend at the date or time stated in the notice.

Schedule

The documents and things you must produce are as follows:

(if insufficient space, attach list)

*omit if, or whichever is, inapplicable.

8. The subpoenas issued by the Court at the request of the accused generally complied with Part B (though the form actually used appears to be an outdated form) and completed the blank spaces above the schedule partly in typescript and partly in manuscript as follows:

Date, time and place at which you must attend to produce the subpoena or a copy of it and documents or things -

Date: 27/7/09 [manuscript]

Time: 9.30 am [manuscript]

Place: The Supreme Court Canberra [manuscript]

Address where the subpoena (or copy) and documents or things may be delivered or posted - Level 2, 17 Bolton Street, Newcastle. 2300. [typescript]

9. The return date was a date in the Registrar's Subpoena List (see Notice to Practitioners dated 19 January 1990) a few days prior to the day on which the pre-trial hearing (see s 40Q of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (the Evidence (Miscellaneous Provisions) Act)) was listed to commence.

10. The footer to each subpoena showed, where the address for service is required to be inserted, the Newcastle address noted above, despite its non-compliance with the definition of "address for service" in the Court Procedure Rules. From this it can be assumed that the solicitor has an office at Level 2, 17 Bolton Street, Newcastle, where the typed subpoena sought to have the documents produced.

11. The prosecution issued an application in proceedings (Part 6.2 of the Court Procedures Rules) seeking to have the subpoenas set aside on a number of grounds. Such an application may be made by a party: r 6604 of the Court Procedures Rules; Botany Bay Instrumentation and Control Pty Ltd and Anor v Stewart and Anor [1984] 3 NSWLR 98. The application was returnable on 22 July 2009. Because of the imminence of the pre-trial hearing, at which the accused wished to use any material produced in response to the subpoenas, I embarked on the hearing at once. The accused was represented by counsel who, it appears, had not been briefed to appear at trial and who sought an adjournment. I adjourned until the following day to permit instructions to be obtained.

12. In order to preserve the position, I made the following orders:

1. In relation to subpoenas, addressed to the following persons, issued at the request of the accused, namely:

(b) the Deputy Principal, [the complainant's] school;

(d) the Proper Officer, Department of Disability, Housing and Community Services;

(f) Kristy Ann Scott of the Australian Federal Police;

the accused's lawyer is to contact the addressee of each subpoena in writing (by email or facsimile) by COB on Wednesday 22 July 2009 with the following information:

(g) that the correct address where the subpoena and documents or things may be delivered or posted is The Registrar, ACT Supreme Court, 1 Knowles Place, Canberra City, ACT 2600;

(h) if the addressee has already sent the documents or things to the accused's lawyer's address at Level 2, 17 Bolton Street, Newcastle, 2300, they are to advise the accused's lawyer accordingly;

(i) that an application has been made to set aside the subpoena which may result in a more limited schedule of documents being required to be produced, which application is to be heard at 10.00 am on Thursday 23 July 2009, and that the addressee will be advised of the outcome of the hearing that day and of any directions that the court then makes about production of any document to be produced under the subpoena.

2. If the accused's lawyer receives any documents or things pursuant to any of the subpoenas referred to in order 1, the accused's lawyer is not to inspect or copy any of those documents but is to ensure that the documents or things are delivered to the Registrar of the Supreme Court at the earliest available opportunity.

13. The application came on for hearing on 23 July 2009. It was supported by an affidavit of Mr Travis Charles Gregory Jackson, an employee of the ACT Director of Public Prosecutions. He deposed that he had first knowledge of the subpoenas when a Senior Prosecutor in that Office, Ms Margaret Jones, had received a copy of a subpoena "addressed to the Australian Federal Police". I assume that is the subpoena referred to at (iii) above, but note that it is not addressed to the Australian Federal Police but to Kristy Ann Scott, a police officer, and would not oblige any person at the Australian Federal Police other than Ms Scott to search for and produce any documents.

14. Subsequently, the father of the complainant also advised Ms Jones that he too had received a subpoena.

15. Despite r 6605 of the Court Procedures Rules, no copies of the subpoenas were served on the Office of the Director. Rule 6605 provides:

6605 Service of subpoena

(1) A subpoena must be served personally on the addressee.

(2) Subrule (1) is subject to rule 6480 (Subpoena - service on solicitor) and rule 6481 (Subpoena - service of medical expert).

Note See also div 6.8.10 (Service of subpoenas in New Zealand).

(3) The issuing party must serve a copy of a subpoena to produce on each other active party as soon as practicable after the subpoena has been served on the addressee.

Lawyers should make themselves familiar with their obligations under the Rules and then ensure compliance. In this case, delay in compliance meant that the Court and the parties were inconvenienced and that third parties, including the addressees to the subpoenas, were not able to receive the treatment they deserved.

16. Nevertheless, on request, the accused's solicitor provided a copy of the other four subpoenas.

17. In the application by the Director of Public Prosecutions to set aside the subpoenas, the following grounds were set out:

1. The documents and items sought in each subpoena are in identical terms and hence identify documents and items that would clearly not be held by the addressee. Each addressee would be unable to comply with the terms of the subpoena due to the general and identical nature of the items sought. The subpoenas are oppressive.
2. The items and documents requested to be produced go beyond what may be relevant to the proceedings.
3. All the subpoenas request "all records of examinations including ... psychological examinations" and "all interviews with ... counsellors". Section 58 of the Evidence (Miscellaneous Provisions) Act 1991 requires applications for production of such documents to be made in writing by the party seeking their production: s 59. No written application has been received by the Prosecution.
4. Each subpoena incorrectly states the address for delivery or posting of the documents as the accused's solicitor's address of Suite 5, Level 23, 17 Bolton Street Newcastle.
5. The medical records sought are too broad. The subpoena requires production of "all records of examinations, including medical and/or psychological examinations ... concerning [the complainant] and/or [the accused] ... and/or the investigation of allegations by [the complainant] of assaults being committed upon her". The documents and items sought go beyond the subject of these proceedings.

The questions of law to be raised are as follows:

1. Sections 58 and 59 of the Evidence (Miscellaneous Provisions) Act 1991 required the court's leave before the issuing of a subpoena requiring the production of protected confidences.

18. I shall deal with each ground though some can be dealt with together.

19. Ground 4 can be dealt with shortly. The documents produced under a subpoena must be produced to the court. As Jordan CJ said in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 (at 574), "If the witness [called on subpoena duces tecum] produces the documents, he produces them to the Court and not to the parties".

20. Indeed, it is quite inconsistent for the address of the issuing party to be specified as the address to where the documents may be posted or delivered. As the paragraph marked (b) in Part B (see [7] above) makes clear, the documents, if posted or delivered at least two days before the trial, must be posted or delivered to the Registrar. The Registrar's address is not that of the solicitor.

21. It is true that, in civil proceedings, there is a method whereby documents can be required of a non-party for inspection and where they are to be delivered to the parties. See Division 2.8.7 of the Court Procedures Rules. That procedure is, however, limited to civil proceedings and has safeguards built into it to ensure that it does not cause injustice.

22. Accordingly, it is quite wrong for a subpoena to specify the address of the solicitor for a party as the address to which the documents sought to be produced should be delivered or sent.

23. It is unfortunate that the subpoenas were issued in this form and this would be sufficient for them to be set aside. In the circumstances, however, instead of setting the subpoenas aside, I was able, under r 6604, to set aside that address and make other directions to ensure that any documents produced under the subpoena would be produced to the Court.

24. Since the enactment of Div 4.5 of the Evidence (Miscellaneous Provisions) Act in 2003 certain counselling communications have been protected from disclosure unless by order of a court.

25. In brief, the provisions provide that a counselling communication made by or about a person, against whom a sexual offence is alleged to have been committed and in circumstances that give rise to a reasonable expectation of confidentiality or a duty of confidentiality, may not be disclosed in criminal proceedings without leave of the court dealing with the proceeding. Such communications are called "protected confidences".

26. The regime is similar to regimes in other jurisdictions. See, for example, the Criminal Procedure Act 1986 (NSW), Chpt 6, Pt 5, Div 2; the Evidence Act 1906 (WA), ss 19A-19M; and the Evidence Act 1939 (NT), Pt VIA.

27. Unfortunately, each regime is slightly different and uses different words so that there can be difficulty in making use of authorities decided on those other provisions.

28. It is clear that some of the documents sought by the subpoenas issued in this case may, indeed are likely to, fall within the category of protected confidences. That in itself may well be enough for the subpoena to be set aside. Clearly, without leave - and s 59 of the Evidence (Miscellaneous Provisions) Act specifies how an application for leave must be made - no party may inspect the documents.

29. The Act seems to establish its own regime for having such documents before it and inspecting them. Sections 59, 60 and 61 provide:

59 Application for leave to disclose protected confidence

(1) An application for leave must -

(a) be in writing; and

(b) set out the leave sought; and

(c) set out the applicant's arguments in support of the application (including the matters mentioned in section 60(2) (Threshold test - legitimate forensic purpose)).

(2) The application must also -

(a) set out briefly the nature of the protected confidence evidence (if known); and

(b) set out, or be accompanied by a copy of, any relevant documents.

1. Threshold test - legitimate forensic purpose

(1) The court must refuse the leave sought under section 59 if not satisfied that the applicant has established a legitimate forensic purpose for seeking the leave.

(2) To establish a legitimate forensic purpose, the applicant must -

(a) identify a legitimate forensic purpose for seeking the leave; and

(b) satisfy the court that there is an arguable case that the evidence in relation to which the leave is sought would materially assist the applicant in his or her case in the proceeding.

(3) The court must decide whether or not to refuse the application under this section before it conducts a preliminary examination of the protected confidence evidence under section 61.

61 Preliminary examination of protected confidence evidence

(1) If the court is satisfied that the applicant has established a legitimate forensic purpose for seeking the leave, the court must then conduct a preliminary examination of the protected confidence evidence to decide whether leave should be given.

(2) For the preliminary examination, the court may -

(a) require anyone who has custody or control of a document recording a protected confidence to produce the document to the court for inspection; or

(b) require the counsellor concerned or, if the counsellor provides counselling on behalf of an entity, the principal or another representative of the entity -

(i) to give the court written answers to any questions; or

(ii) to attend the court for oral examination.

(3) The court must not order a person to attend for oral examination under subsection (2)(b)(ii) unless the oral examination of the person is necessary for the effective conduct of the preliminary examination.

(4) Only a person mentioned in subsection (2) may be ordered to answer questions or be examined under this section.

(5) The preliminary examination must be conducted -

(a) in the absence of the public and the jury (if any); and

(b) in the absence of the parties to the criminal proceeding and their lawyers, except to the extent otherwise decided by the court.

(6) Evidence taken at the preliminary examination must not be disclosed to the parties or their lawyers, except to the extent otherwise decided by the court or an appellate court under section 62(6).

(7) A record of the preliminary examination must be made, but must not be made available for public access.

30. In my view, this is intended as a regime for all the relevant dealings with protected confidences. It seems to me that the prohibition on disclosure includes disclosure to the court. I rely on both the term itself, "disclosure", as well as the facts that s 60(3) directs the court to decide whether to refuse the application before inspecting the documents and that s 61(1) makes it a precondition to the court inspecting the documents that the applicant must first establish a legitimate forensic purpose for seeking leave to disclose the protected confidence.

31. The court may then issue an order requiring the documents to be produced and, if thought fit, for the counsellor to attend to give evidence. This examination can be conducted in the absence of the parties and their lawyers.

32. All this is inconsistent with the idea of a subpoena being able to be issued to produce the documents before the court prior to the determination of whether there is a legitimate forensic purpose. Thus, to me, the wording of the provisions distinguishes them from those considered in R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681.

33. In Re McInnes [2009] ACTSC 29, Penfold J had to consider these provisions. As her Honour noted (at [9]) the application came before the court as an application for leave to issue a subpoena for the documents concerned. It seems to me, with respect, that this is the preferable way in which to approach these provisions. If the court is satisfied that there is a legitimate forensic purpose under s 60, then it can direct the subpoena to issue. The documents are then produced to the court. The next stage (really the first of the three-stage process in respect of subpoenas identified in National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372) is for the court to inspect the documents, and when produced, to decide whether leave should be given to disclose the documents.

34. Accordingly, to the extent that the subpoenas issued in this proceeding require protected confidences to be produced, they are not maintainable. They should be set aside. Again, however, because it was possible to reformulate the subpoenas, I did not set them aside but excluded from production any documents that were protected confidences.

35. These grounds may conveniently be considered together. Although differently articulated, they essentially all sought to have the subpoenas set aside as being too broadly drawn.

36. In the first place, the schedule of documents included in each subpoena was merely a reproduction of the one schedule without any thought being given to whether it was appropriate for each addressee: whether it was "likely" that the addressee would have the relevant items was not thought through by those drafting the terms of the schedule.

37. That in itself, however, may not make a subpoena an abuse of process. There are often likely to be subpoenas addressed to persons who do not have in their possession, custody or power the documents sought. The grounds on which a subpoena may be set aside have been helpfully summarised up by Jordan CJ in Commissioner for Railways v Small where his Honour said (at 574):

Where the subpoena is addressed to a party, it is still necessary that it should state with reasonable particularity the documents which are to be produced: ... Even if the documents are specified, a subpoena to a party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant.

38. Thus, vague drafting of the documents sought will justify setting a subpoena aside.

39. Similarly, if the addressee is required to consider a great number of documents the relevance of which is unclear, the subpoena will be set aside. The addressee should not be put to the trouble and expense of "ransacking" his, her or its records to ascertain whether any of the records relate to a dispute of which the addressee may know little or nothing: Hardie v Cooke [1990] 2 Qd R 351 (at 353). See also Wood P M, "Challenging Subpoenae Duces Tecum: Is There a Third Party View?" [1984] SydLawRw 7; (1984) 10 Syd L Rev 379 (at 393-4).

40. Nevertheless, there appears to be some latitude given to the person at whose request the subpoena is issued. Thus, the schedule of the subpoena and the descriptions in it do not have to be precisely specific, but only reasonably so and a degree of generality is permissible: Alliance Petroleum Australia (NL) and Ors v Australian Gas Light Co (1982) 44 ALR 124 (at 133). Similarly, the burden on the addressee must be considered in all the circumstances, including the capacity of the addressee to bear it: Lucas Industries Ltd v Hewitt and Ors (1978) 18 ALR 555 (at 571).

41. It is clear that there are important interests in having produced to the court documents that are or may be reasonably relevant and, where admissible, used in the proceedings.

42. Thus, the fact that the same schedule was used, even though it was quite unlikely that some of the addressees would have some of the documents sought by the subpoena is probably not enough in itself to justify setting the subpoena aside. It may be lazy practice, or thoughtless of the lawyer issuing the subpoena. It is easy to forget that lay persons are not as informed about court processes as lawyers. A lawyer who receives a subpoena where the documents are clearly not in their possession would know immediately that a nil return can be provided without penalty. A lay person receiving such a subpoena may well think that its service implies that they have or should have the documents and spend time trying to discover them or worry about not having them. It also requires the addressee to attend court and state that no such documents are produced, an unnecessary impost if the addressee was unlikely to have ever had the documents.

43. The use of a schedule inappropriately as in this case would not ordinarily require a subpoena to be set aside unless it was oppressive for the more traditional reasons, though such practice is to be discouraged.

44. In this case, however, the drafting of the schedule was faulty. The terms clearly went well outside what was relevant. For example, it referred to records "concerning [the complainant] and/or [the accused]". This would require the school, for example, to produce all records of the complainant while she had been at the school. It is difficult to see what legitimate forensic purpose was "on the cards" in such a call: Attorney-General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 (at 550-555). None was advanced in this case.

45. Similarly, the records relating to the accused were also without limitation. There was no suggestion that the accused had attended the school. As to the Department and the Hospital, however, records of interactions with those institutions, if any, would be caught by the schedule notwithstanding they might have had no conceivable connection with the events the subject of the charges.

46. The schedules are, therefore, too wide. They appear to be fishing and are arguably oppressive. They should clearly be set aside.

47. Fortunately, common sense prevailed and discussions were conducted between the prosecution and defence lawyers leading to the narrowing of the terms of the schedules so that these problems were removed. An agreed replacement schedule (with some items on which I was asked to rule) was handed up in respect of each subpoena.

48. Accordingly, I was not required to set aside any of the subpoenas but to make orders that permitted them to be called upon just prior to the hearing and answered, so far as they could be.

49. Rule 6604 is in very wide terms. It permits the court to "grant other relief" as well as granting a power to set aside the subpoena wholly or partly.

50. The rule is in the same terms as r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) but I was unable to find any authority on the nature or width of the "other relief" that could be granted.

51. In my view, the orders that I made were within power and, in the circumstances, appropriate. This was a sexual assault case involving a child complainant. Such cases should be prosecuted as expeditiously as is possible consistent with the interests of justice. Thus, I did consider and reject the option of adjourning the proceedings so that proper subpoenas could be issued and served.

52. In this context, I had regard to the fact that the addressees were, with one exception, government instrumentalities or employees who had access to legal advice fairly readily and, in at least the case of the Hospital and the Department, were well used to receiving and handling subpoenas. The one exception, the father of the complainant, had had some contact with the Director of Public Prosecutions or his staff. As a result, I was confident that the orders made were likely to achieve the purpose that documents within the narrower defined schedule only would be produced and that confusion was unlikely.

53. It does seem to me, however, that the court should not ordinarily be engaged in the re-drafting of the schedule of documents sought under a subpoena to produce documents, other than, perhaps, where a litigant in person has sought to have the subpoena issued. Nevertheless, the power to set aside a subpoena in part almost implies some such involvement. Lawyers should, however, use their skill and knowledge to draft proper subpoenas and, if they fail, accept that the subpoenas will be set aside, involving the consequent expense and sometimes delay of having fresh subpoenas issued and served, if that can be done.

54. Similarly, re-drafted schedules should ordinarily lead to amended or fresh subpoenas being issued and served rather than being the subject of correspondence to the addressees seeking to limit or redefine what they produce. This case should not become a precedent for usual practice in that regard.

I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the applicant: Director of Public Prosecutions (ACT)