Secretary of the Department of Planning, Industry and Environment v Blacktown City Council

P Singleton with A Lim (Applicant) M Astill (First Respondent)

Crown Solicitor's Office (Applicant) Maddocks (First Respondent) Dentons (Second and Third Respondents) (submitting appearance) File Number(s): 2021/126506 Publication restriction: N/A Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 3 Citation: [2021] NSWLEC 38 Date of Decision: 28 April 2021 Before: Pepper J File Number(s): 2020/219176

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] Blacktown City Council issued a subpoena for production to the Secretary of the Department of Planning, Industry and Environment in relation to forthcoming proceedings in the Land and Environment Court. The Secretary unsuccessfully applied to set aside the subpoena on the basis that it lacked any legitimate forensic purpose. The Secretary contended that the primary judge misconstrued and consequently misapplied this Court's earlier decision in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 (ICAP). ICAP was a decision refusing leave to appeal from a decision of Nicholas J in which his Honour set aside a subpoena issued in civil proceedings on the ground that it lacked a legitimate forensic purpose. The Secretary contended that the relevant test stated in ICAP for determining whether or not a subpoena should be set aside was whether or not the documents sought by subpoena would materially assist the case of the party which issued the subpoena. The Secretary submitted that the Council could not show that the documents sought to be produced by way of subpoena were likely to assist the Council's case. The principal issues on appeal were: 1. the status and effect of this Court's earlier decision in ICAP; 2. irrespective of what this Court held in ICAP, whether a legitimate forensic purpose may be established if it can be shown that it is likely that the documentation to be produced on subpoena will (or on a reasonable basis beyond speculation is likely to) materially assist on an identified issue, even if it cannot be shown that the documents subpoenaed will be likely to assist the case of the party issuing the subpoena. The Court held, granting leave to appeal but dismissing the appeal with costs: As to issue 1: 1. The primary judge was in error in concluding that she was bound by ICAP which was a decision refusing leave to appeal: [31] (Bell P); [92] (Brereton JA); [99] (McCallum JA). 2. Observations by Bell P at [23]-[31] as to the precedential value of reasons of intermediate appellate court refusing leave to appeal. X v Director of Public Prosecutions [1995] 2 VR 622; Simjanoski v La Trobe University [2004] VSCA 125; Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72; [2001] HCA 49 considered. Per Brereton JA and McCallum JA 1. The primary judge did not err in her interpretation of ICAP which was silent as to whether it is necessary that it be likely that the documents the subject of a subpoena will materially assist the issuing party's case: [95] (Brereton JA); [99]-[100] (McCallum JA). Per Bell P: 1. The primary judge probably erred in her conclusion as to what ICAP in this Court stood for but insofar as she held that it was not necessary, in order to demonstrate a legitimate forensic purpose, that the documents sought by way of a subpoena would materially assist the case of the party that issued the subpoena, there was no relevant error: [30]; see also [89], [96] (Brereton JA); [98] (McCallum JA). As to issue 2: Per Bell P, Brereton and McCallum JA agreeing: 1. The power of the Court to set aside a subpoena, in whole or in part, is but an instance of its power to regulate its processes and, in particular, to intervene in a case of abuse of its process: [32], [60] (Bell P); [88] (Brereton JA); [98], [100] (McCallum JA). 2. A subpoena will be presumed to have been issued for a legitimate forensic purpose if the documents sought are "apparently relevant" to the issues in the proceedings, or if it can be seen that the documents sought to be produced by way of subpoena will (or there is a reasonable basis beyond speculation that they will) materially assist on an identified issue: [65], [80] (Bell P); [89] (Brereton JA); [98] (McCallum JA). Brand v Digi-Tech [2001] NSWSC 425; Carroll v The Attorney-General for New South Wales (1993) 70 A Crim R 162; Commissioner of Taxation v Glastonbury Steel Fabrications Pty Ltd (1984) 75 FLR 298; (1984) 15 ATR 88; Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90; [1989] FCA 340; Lane v The Registrar of The Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245; [1981] HCA 35; Hatton v Attorney-General (Cth) (2000) 158 FLR 31; [2000] FamCA 892; Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303; Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 100; Portal Software v Bodsworth [2005] NSWSC 1115, considered. Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85; Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 distinguished. 1. Documents will add "in some way" to the relevant evidence and be sought for a legitimate forensic purpose if they are capable of providing a legitimate basis for cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence: [40], [61]-[62] (Bell P); [89] (Brereton JA); [98], [100] (McCallum JA). 2. An issuing party's inability to show that the subpoenaed documents are likely to assist its case will not necessarily mean that the subpoena has not been issued for a legitimate forensic purpose, and will not automatically require either that the subpoena be set aside or that access to the documents produced be refused: [63]-[64], [66], [80] (Bell P); [89] (Brereton JA); [98] (McCallum JA). Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307; ICAP Pty Ltd v Moebes [2009] NSWSC 306; R v Saleam [1999] NSWCCA 86; Santos Ltd v Pipelines Authority of SA (1996) 66 SASR 38, considered. 1. However, the absence of any apparent relevance of the documents sought to be subpoenaed to the issues in the case may warrant a conclusion of a lack of legitimate forensic purpose, and be a sufficient ground to set aside a subpoena or part of a subpoena: [71] (Bell P); [88] (Brereton JA); [98] (McCallum JA). Hatton v Attorney-General (Cth) (2000) 158 FLR 31; [2000] FamCA 892; Portal Software v Bodsworth [2005] NSWSC 1115; Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 at 102; [1989] FCA 340, considered. 1. In the circumstances of the case, insofar as the primary judge held that it was not necessary that the documents sought by way of a subpoena would materially assist the case of the party that issued the subpoena in order to demonstrate a legitimate forensic purpose, there was no relevant error, and her Honour's decision not to set aside the subpoena did not miscarry: [21], [81] (Bell P); [86], [96] (Brereton JA); [98] (McCallum JA).

Judgment

1. BELL P: This is an application for leave to appeal from a decision of Pepper J (the primary judge) in relation to the issue of a subpoena for production: Jong Mi Hong v Blacktown City Council [2021] NSWLEC 38 at [62]-[63] (the primary judgment or PJ).
2. The subpoena was issued by Blacktown City Council (the Council) to the Secretary of the Department of Planning, Industry and Environment (the Secretary) in relation to forthcoming proceedings in the Land and Environment Court between Mr and Mrs Hong (the Hongs) and the Council. The primary judge refused the Secretary's application to set aside the subpoena.
3. The proceedings in which the subpoena has been issued are "Class 3" proceedings brought pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) following the resumption of the Hongs' land.
4. Sections 38(1)-(2) of the Land and Environment Court Act 1979 (NSW) relevantly provide: "(1) Proceedings in Class 1, 2 or 3 of the Court's jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit. (2) In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits."
5. The Civil Procedure Act 2005 (NSW) applies to Class 3 proceedings brought in the Land and Environment Court: see s 4 and Sch 1 of that Act.
6. An application for leave to appeal from an interlocutory decision on a matter of practice and procedure faces the high hurdles which have been referred to consistently by this Court: see, for example, PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]-[6], where the authorities were relevantly collected. Those high hurdles exist for the reasons stated by Sir Frederick Jordan in In re the Will of F. B. Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323; (1946) 63 WN (NSW) 176, who said that: "...if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal."
7. What is sought to be challenged in the present case is not so much an exercise of judicial discretion in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense, however, but rather a suggested incorrect application of this Court's decision in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 (ICAP), which the primary judge considered bound her, but which the Secretary contends was misconstrued and consequently misapplied. ICAP was a decision refusing leave to appeal from a decision of Nicholas J in which his Honour set aside a subpoena issued in civil proceedings on the ground that it lacked a legitimate forensic purpose: see ICAP Pty Ltd v Moebes [2009] NSWSC 306.
8. The Secretary contended that the relevant test stated in ICAP for determining whether or not a subpoena should be set aside was whether or not the documents sought by subpoena would materially assist the case of the party which issued the subpoena. At [21] of ICAP, Tobias JA (with whom Basten JA and Handley AJA agreed) held that there was: "more than sufficient authority to support his Honour's reference at [30] of his judgment to the requirement that the documents the subject of the subpoena 'will materially assist' the applicants' case" (emphasis in original).
9. One difficulty with this paragraph is that what Nicholas J had said at [30] of his judgment was that: "[I]t must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will." (emphasis added). Nicholas J did not refer in this paragraph to the need for the "material assistance" to be to the party that issued the subpoena. That rider was added by Tobias JA although, as shall be seen, that is not to suggest that there was not other authority which supported the addition of such a rider: see, for example, Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 (Chidgey) and [15] below.
10. In the present matter, the primary judge, having stated that this Court's decision in ICAP was directly binding on her, went on (at [62]) to identify the test she understood it to stand for. This was whether or not: "it is likely that the documentation will materially assist on an identified issue, or that there is a reasonable basis beyond speculation that it is likely that the documentation will materially assist on an identified issue, and not that the documentation will materially assist the Council's case." (emphasis added).
11. At [69], the primary judge said that she did not consider that: "on the correct formulation of the test for legitimate forensic purpose, it is necessary for the Council to demonstrate that the documents sought to be produced would materially assist its case. Rather, it is sufficient to establish that the documents would assist on an identified issue, namely, what would the land have been zoned disregarding the acquisition."
12. Her Honour's statement as to the correct formulation of the test accorded with what appeared in [30] of the decision of Nicholas J at first instance in ICAP, but did not pick up the words Tobias JA had added to that paragraph in apparently endorsing it in [21] of this Court's decision in ICAP, namely that the material assistance which the subpoenaed documents would be likely to afford must be material assistance to the case of the party that had issued the subpoena. This distinction is encapsulated in the sole proposed ground of appeal, which is that: "The Court below erred in holding that the test for the validity of a subpoena is that, in addition to its having a legitimate forensic purpose, 'it is likely that the documentation [sought by the subpoena] will materially assist on an identified issue, or that there is a reasonable basis beyond speculation that it is likely that the documentation will materially assist on an identified issue, and not that the documentation will materially assist the [subpoenaing party's] case' (judgment below at [62])."

Parties' contentions

1. The Secretary contends that the primary judge was wrong in her Honour's identification of what ICAP held, and that the distinction which her Honour drew was in error and critical to the decision at first instance not to set aside the subpoena. The Secretary pointed in this regard to [70]-[71] of the primary judgment: "70 The concession made by the Secretary that the subpoenaed documents would disclose factors that the Minister considered in making his rezoning decision is, in my opinion, sufficient to dispose of the application to set aside the subpoena on the ground that it lacks legitimate forensic purpose. In light of this admission, it may readily be found that the documents sought in the subpoena have a sufficient apparent connection to the rezoning issue to justify their production and inspection (D v Australian Financial Security Authority, formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50 at [56]). This conclusion is reinforced when regard is had to the schedule to the Hong subpoena in answer to which these documents were produced. The Hong subpoena sought documents relating to the rezoning issue. 71 It follows that I do not accept that the Council was required to demonstrate that the documents were likely to show the alternative rezoning options before the Minister and that he would have selected an option favourable to it. The four scenarios posited by the Secretary are premised upon a formulation of the test for demonstrating legitimate forensic purpose that is too onerous and does not accord with authority." (emphasis added).
2. The Secretary characterised this aspect of the primary judgment as in substance giving effect to a test of "apparent relevance" to an issue or issues in the proceedings, rather than a formulation of material assistance to the case of the party that issued the subpoena. This first characterisation is consistent with what the primary judge held ICAP to stand for but, as noted above, the Secretary contended that this understanding was wrong.
3. The Secretary also submitted that the primary judge's understanding of ICAP was at odds with a number of statements by the Court of Criminal Appeal as to the appropriate test for assessing legitimate forensic purpose in circumstances where subpoenas are issued in criminal proceedings: see Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667; (1994) 75 A Crim R 8 (Stuart); R v Saleam [1999] NSWCCA 86 (Saleam); and Chidgey. Chidgey, which in effect applied Saleam, was referred to by Tobias JA in ICAP. At [64] of Chidgey, Beazley JA (as her Honour then was, and with whom James and Kirby JJ agreed) said: "The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in R v Saleam [1999] NSWCCA 86 at [11], in the following terms: 'The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was'."
4. The Secretary submitted, moreover, by reference to the decision of the High Court in Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 (Alister) that the test of legitimate forensic purpose should be more liberal in the criminal context than the civil context. On this basis, it was submitted that it would be inconsistent with Alister if ICAP was understood in a way that resulted in it being more rather than less difficult to defend a subpoena issued in criminal proceedings than in civil proceedings.
5. The Council contended that the primary judge did not err in her understanding of ICAP but that, even if she did, ICAP did not provide a complete statement of the law as to legitimate forensic purpose in this area. It was submitted that just because the party issuing the subpoena may not be able to demonstrate that the documents sought to be subpoenaed would or would be likely materially to assist its case, it did not follow that that party lacked a legitimate forensic purpose in issuing the subpoena.
6. The Council pointed to the statement of Brereton J (as his Honour then was) in A v Z (2007) 212 FLR 255 at 257; [2007] NSWSC 899 at [4] (A v Z) in support of this submission. His Honour there said that: "There is no doubt that, at the least, a subpoena is not issued for a legitimate forensic purpose unless there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case."
7. The Council also resisted the Secretary's argument by reference to authorities concerned with the issue of subpoenas in criminal proceedings on the basis that it is the Civil Procedure Act which is the source of the power to issue subpoenas, and that that Act provides the procedural framework, including in its overarching purpose provisions, by reference to which the questions sought to be raised ought be considered. There was also an issue as to whether or not the Secretary's reliance on Alister to ground part of its argument was sound.
8. Accordingly, the following questions arise: 1. what did this Court's earlier decision in ICAP hold and was the primary judge in the present case wrong in her understanding of what it stood for? 2. irrespective of what this Court held in ICAP, may a legitimate forensic purpose be established if it can be shown that it is likely that the documentation to be produced on subpoena would materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will assist in that respect even if it cannot be shown that the documents subpoenaed may assist the party issuing the subpoena?
9. For the reasons that follow, I consider that the primary judge probably erred in her conclusion as to what ICAP in this Court stood for (although, as explained at [30] below, that is not entirely clear) but, insofar as her Honour held that it was not necessary, in order to demonstrate a legitimate forensic purpose, that the documents sought by way of a subpoena would materially assist the case of the party that issued the subpoena, there was no relevant error and her Honour's decision not to set aside the subpoena did not miscarry.
10. It follows that I would grant leave to appeal (because the matter did raise an important question of principle) but dismiss the appeal. Costs should follow the event.

What did ICAP decide?

1. In strict terms, all that the Court of Appeal's judgment in ICAP decided was that the criteria for the grant of leave to appeal from the decision of Nicholas J to set aside the subpoena were not satisfied in that particular case, Nicholas J's decision being of an interlocutory character which required leave to appeal pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW).
2. In such a context, Callaway JA said in X v Director of Public Prosecutions [1995] 2 VR 622 at 626 that: "even where leave is refused because a decision is not attended with sufficient doubt, the Court of Appeal does not thereby affirm the decision, nor does it acquire the precedential status of a decision of this court. The reasons for that are, first, that the question is whether leave should be granted as opposed to the correctness of the decision and, secondly, that argument may be limited accordingly".
3. It should be noted that the practice in at least some intermediate courts of appeal, much like the approach taken by the High Court to the disposition of most special leave applications, is not to give other than general reasons for refusing leave to appeal: see, eg, Simjanoski v La Trobe University [2004] VSCA 125 at [4]. This practice was not seen by the Victorian Court of Appeal as being affected by the observations of the High Court in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72; [2001] HCA 49 at [26] (Roy Morgan), where the plurality stated that reasons should be given for refusing leave to appeal even though those reasons need not be extensive and, in appropriate cases, "little more may be required than a short, perhaps very short, statement of the chief conclusions which the judge refusing leave has reached." The plurality went on to say, however, that: "The disappointed applicant (and any court asked to review the refusal) must, however, be able to know from the reasons given by the primary judge why the judge reached the decision to refuse leave."
4. The current practice of the New South Wales Court of Appeal reveals a tendency to give fuller reasons for the refusal of leave to appeal than is perhaps the case in some other jurisdictions (see, for example, L Beck, "The Constitutional Duty to Give Reasons for Judicial Decisions" (2017) 40 UNSW Law Journal 923 at 940-943), although the extent to which reasons are given for such decisions may vary according to the nature of the case: see, eg, La La Land Byron Bay Pty Limited v The Independent Liquor and Gaming Authority [2015] NSWCA 254 at [6]-[11]; and Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44] (Mohareb). Fuller reasons may be given, for example, where a leave application is heard but refused following a concurrent hearing, that is to say, where the leave application and arguments as on appeal are heard at the same time and usually for a longer period than on a pure leave hearing.
5. So also considerations of proportionality and the Court's obligation to give effect to the overriding purpose in s 56 of the Civil Procedure Act call for discriminating judgment as to where and how to strike a balance in giving reasons for refusing applications for leave to appeal and dealing with other interlocutory motions, especially where there has not been proper observance of applicable procedural requirements by litigants such as page limits for written submissions: see Mohareb at [35]-[41]; and Hassan v Sydney Local Health District (No 2) [2021] NSWCA 122 at [16]-[19].
6. One consequence of the general practice of the New South Wales Court of Appeal in giving fuller reasons for its decisions refusing leave to appeal than is perhaps the case in other jurisdictions is that, whether or not strictly binding, such decisions (such as the decision of this Court in ICAP refusing leave to appeal) will frequently contain observations of persuasive authority or practical use and value for judges at first instance. It should be remembered, however, that decisions refusing leave to appeal will not always have had the benefit of full argument, this depending principally upon whether or not the leave application has been listed separately or concurrently on the contingent basis that leave to appeal might be granted: see r 51.14 of the Uniform Civil Procedure Rules 2005 (NSW). If the application for leave is listed separately, only 20 minutes are permitted for the development of argument.
7. As it will not always be clear from the Court of Appeal's reasons for refusing leave to appeal whether or not the matter has been heard as a separate leave application or concurrently, caution must be exercised in treating statements in such decisions as giving rise to binding precedent, as her Honour did in the current case. The decision in ICAP, which was an ex tempore decision of the Court of Appeal, does not appear to have been the subject of a concurrent hearing.
8. All of this having been said, however, to the extent that ICAP "stands for" anything more than a conclusion that Nicholas J's decision at first instance in that case did not satisfy the criteria for leave to appeal, Tobias JA's addition of the words "the applicant's case" in [21] of his reasons (see [8] above), together with his reference to Chidgey, suggests that the primary judge's conclusion as to what ICAP held (as reproduced at [10] above) may not be correct. In fairness to her Honour, however, earlier in his reasons in ICAP (at [14]), Tobias JA had said that: "In my view I do not regard his Honour's summary of the relevant principles at [30] of his judgment as involving any error of principle or misstatement of the test which has been described in various ways in the authorities but in a manner which, at the end of the day, do not differ in substance. Accordingly, I do not detect that his Honour in applying the test he adopted to the terms of the subpoena before him misstated that test or committed some relevant error of principle."
9. ICAP should not be taken to constitute an authoritative decision of this Court standing for the proposition that, in civil proceedings, a subpoena will or must be set aside if it cannot be shown that the documents sought on subpoena were likely materially to assist the party that issued the subpoena.
10. As explained below, where it can be shown that the documents sought on subpoena are likely materially to assist the party that issued the subpoena, it will generally not be possible for the subpoenaed or some other interested party to contend that the subpoena should be set aside on the grounds of abuse of process or that the issuing party lacked a legitimate forensic purpose. The converse does not, however, follow.

Legitimate forensic purpose and "apparent relevance"

1. In Re Don [2006] NSWSC 1125 at [25], Sully J observed, with the wisdom derived from a long and admired career on the Bench, that: "In recent years there have been repeated attempts by appellate Courts and by Judges sitting at first instance to crystallise principles by reference to which any dispute concerning the permissibility of a particular subpoena for the production of a document must be determined. Any attempt to draw out of those decisions a body of fixed principles which are of universal application is, in my view, unhelpful and unproductive in a case of the present kind. Some of the antecedent authorities deal with criminal cases; others deal with civil cases … Some of the antecedent decisions turn upon there having been made an objection, based upon a claim of public interest immunity privilege, to the upholding of a particular subpoena… Some of the antecedent authorities deal, not with a threshold objection to the propriety of a subpoena to produce, but with a subsequent application by the party issuing the subpoena to be given access to material in fact produced to the Court in answer to the subpoena."
2. His Honour went on to observe, however, that in the face of an application to set aside a subpoena, "the issuing party, in order to defeat the application, must be able to identify, and the relevant Court must insist that there be precisely identified in fact, some legitimate forensic purpose, the existence of which can fairly be regarded as justifying the call which the challenged subpoena makes": at 26.
3. The expression "legitimate forensic purpose" is of uncertain origin in this context. It first seems to have been used by Samuels JA (who also used the expression "legitimate forensic endeavour") in Maddison v Goldrick [1976] 1 NSWLR 651 at 666; see also at 668 (Maddison v Goldrick). The context of that case relevantly was that, in the course of a committal hearing, the sergeant of police in charge of the investigation, having admitted in cross-examination that he was the person responsible for preparing and compiling the prosecution brief and that the brief was in the possession of the police prosecutor in court, counsel for the accused sought an order under s 12 of the Evidence Act 1898 (NSW) that the police brief be produced to the Court (although Samuels JA proceeded on the basis that what was really sought were "the statements made to the police by persons who, it was anticipated, would be called as witnesses in the proceedings": at 662). Section 12 of that Act relevantly provided: "Any person present at any legal proceeding wherein he might have been compellable to give evidence and produce documents by virtue of a subpoena or other summons or order duly issued and served for that purpose shall be compellable to give evidence and produce documents then in his possession and power in the same manner, and in case of refusal shall be subject to the same penalties and liabilities as if he had been duly subpoenaed or summoned for that purpose."
4. The order was made, documents were produced to the Court and an order for access permitted. That order was in part the subject of appeal, initially to Taylor CJ at CL, and then to the Court of Appeal. In his judgment, Samuels JA (with whom Street CJ and Moffitt P agreed) said (at 666) that "the magistrate, before exercising his discretion to make them [the documents] available to the defence, must be satisfied that they are required for some legitimate forensic purpose." His Honour held that in the present case, such a purpose was sufficiently disclosed and that he regarded the call "as a proper exercise of the rights conferred by s. 12, read with s. 26, and thus as involving no abuse of the subpoena process": at 663. The reference to s 26 was to s 26 of the Justices Act 1902 (NSW), which provided that: "Whenever by the oath of a credible person it is made to appear to a Justice - (a) that any person is likely to be able to give material evidence, or to have in his possession or power any document or writing required for the purposes of evidence; and (b) that such person will not appear voluntarily to be examined as a witness, or to produce such document or writing at the time and place appointed for the hearing of the information, such Justice shall issue his summons for the appearance of such person to be examined as a witness or to produce such document or writing as the case may be: Provided that if such Justice is satisfied by evidence upon oath that it is probable that such person will not appear to be examined or to produce such document or writing unless compelled to do so, he may issue his warrant in the first instance for the apprehension of such person: Provided that no person shall be bound to produce any document or writing not specified or otherwise sufficiently described in the summons or warrant or which he would not be bound to produce upon a subpoena for production in the Supreme Court."
5. Samuels JA, referring to s 26 of the Justices Act, said that "documents sought to be used for the purpose of cross-examination are required 'for the purposes of evidence'": at 663. His Honour went on to say (at 666) that: "…it might not be enough for counsel to indicate that his purpose in seeking access to witnesses' statements was merely to have the means in advance of detecting discrepancies between the witnesses' testimony in court and the statements previously made if any such discrepancies were to emerge. It is a far more cogent consideration that, unless some means is available of obtaining access to documents such as witnesses' statements, a defendant, in a preliminary examination before a magistrate, may be quite unable to establish vital discrepancies where they do in fact occur. We were referred to the line of cases which establishes that a judge at a criminal trial has power, if he thinks the interests of justice require its exercise to order the prosecution to produce a witness's statement to the defence. This power has been discussed or exercised in R. v. Clark; Mahadeo v. R; R. v. Hall and in R. v. Xinaris. In R. v. Charlton, the Full Court of Victoria indorsed the existence of the power, which cannot be doubted. The authorities to which I have referred show that, in each case, counsel for the defence was seeking to use the statement in an attempt to establish discrepancies between a witness's evidence and his prior account; an endeavour both proper and by no means unusual."
6. Later in his decision, Samuels JA referred to what was in substance the purpose which lay behind the subpoena, namely to secure documents which would supply "the opportunity to pursue a proper and fruitful course in cross-examination": at 667. His Honour described this as "on the face of it, a legitimate forensic endeavour which could not be advanced unless Mr. Hosking was able to see the documents necessary to sustain it": at 668. It must be noted that Samuels JA saw this as an aspect of a defendant's right under s 36(3) of the Justices Act to make "full answer and defence" to the charges laid: at 668.
7. Although Maddison v Goldrick was not referred to in Alister, the decision of the High Court in Alister bears a striking similarity to the reasoning in Maddison v Goldrick. Gibbs CJ in Alister expressly noted (at 413-414) that the applicants were "unable to say that any documents of the kind described in the subpoena exist or, if they do exist, that they are likely to assist the applicants' case". After making the well-known observation (at 414) that "[a]lthough a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence", the Chief Justice went on to say at 414-415, in a passage that bears close and careful attention, that: "If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report would assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done."
8. It must follow from this passage (in which the reference to "discovery" is to be understood from its context as "disclosure": see R v Saleam (1989) 16 NSWLR 14 at 19; (1989) 39 A Crim R 406) that it will not be fishing, manifesting an illegitimate forensic purpose, to seek to subpoena apparently relevant documents for the purposes of cross-examining an important witness, even if the subpoenaing party does not know whether those documents will assist or advance its case. The passage also supports the view that a party may be materially assisted in its case by knowing what apparently relevant documents say, even if those documents may not ultimately materially advance that party's case. As Beazley JA observed in Chidgey at 552, it is "both important and instructive to understand the manner in which Gibbs CJ [in Alister] saw this test operating at a practical level." See also A v Z at [10].
9. Some care must also be taken in transposing observations in Alister, which was principally a case concerned with a claim for public interest immunity, to the general law relating to the setting aside of subpoenas or the inspection of documents produced on subpoena. Similar reservations apply in relation to the decision of the House of Lords in Air Canada v Secretary of State for Trade [1983] 2 AC 394, upon which the Secretary placed considerable reliance in the present case, for the reasons pointed out by Brereton J (as his Honour then was) in A v Z at [4]-[7].
10. In National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 384 (Waind), Moffitt P (with whom Hutley and Glass JJA agreed) said that: "If a subpoena for production is properly issued and not set aside, and, if there is ruled to be no valid objection to the production of the documents to the court, then the documents are in the control of the judge, who is invested with jurisdiction to take all steps necessary for the proper trial of the issues before him, subject to the due observance of any relevant rules and procedures of the court. So far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court. The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger's documents can be to add, in the end, to the relevant evidence in the case". (emphasis added).
11. The expression "legitimate forensic purpose" was also used by McLelland J in Commissioner of Taxation v Glastonbury Steel Fabrications Pty Ltd (1984) 75 FLR 298; (1984) 15 ATR 887 (Glastonbury). In that case, a broadly expressed subpoena had been issued to the Deputy Commissioner of Taxation in winding up proceedings. McLelland J (at 300) said that "[p]rima facie documents of the general kind described in the subpoena would not appear to me to be relevant to any issue in the proceedings" (emphasis added). His Honour went on to say that "[i]t is conceivable, however, that among them there may be something which is relevant or which at least may be able to be utilised for some legitimate forensic purpose" (emphasis added). His Honour expressed the conclusion that he was not satisfied, at the time of the application to set aside the subpoena, that the documents sought were required for any legitimate purpose but, rather than setting the subpoena aside, directed that the Deputy Commissioner was not required to produce the documents unless so directed at or after the commencement of the hearing. In other words, his Honour envisaged the potential for the case to develop in a way in which the subpoenaed documents may become relevant, or some legitimate forensic purpose emerge, in light of the progress of the case.
12. For present purposes, it is relevant to note that McLelland J seemed to accept, in the passage referred to above, that "apparent relevance" of the documents would have justified the issue of the subpoena.
13. The expression "legitimate forensic purpose" was also used by Beaumont J in Trade Practices Commission v Arnotts Limited [1989] FCA 311 (Arnotts). His Honour there said that the issue of a subpoena will be an abuse of process if it is not issued for a legitimate forensic purpose and referred to the decision of Powell J (as his Honour then was) in Botany Bay Instrumentation and Control Pty Limited v Stewart [1984] 3 NSWLR 98 at 100 (Botany Bay). Powell J did not himself use the expression "legitimate forensic purpose", but rather listed a variety of cases in which subpoenas had been set aside. It is useful to set out that list, omitting references: "1. unless the subpoena was issued for the purpose of a pending trial, hearing or application; 2. where to require the attendance of a witness would be oppressive; 3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence; 4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party; 5. where the subpoena has been used for the purpose of obtaining discovery against a third party; 6. where to require a party to comply with a subpoena to produce documents would be oppressive; 7. where the subpoena has been issued for a purpose which is impermissible, as, for example, 'fishing'…".
14. To these examples may be added "lack of apparent relevance" for the reasons explained by Brereton J (as his Honour then was) in Portal Software v Bodsworth [2005] NSWSC 1115 at [19]-[21] (Portal Software), citing amongst other cases, Hatton v Attorney-General (Cth) (2000) 158 FLR 31; [2000] FamCA 892 (Hatton), a decision of the Full Court of the Family Court of Australia.
15. In Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 at 102; [1989] FCA 340 (Arnotts (No 2)), Beaumont J accepted the submission made by the party that issued the subpoena that the documents sought "do have apparent relevance to the issues in the proceedings", namely that the material sought could reasonably have been expected to throw light on the definition of the relevant market in the principal proceedings, and also on the suggestion (denied by Arnotts) of its domination of the market by virtue of the Nabisco acquisition. His Honour formulated the following approach (at 103): "Without restricting this inquiry, it is convenient to address the present application in the first instance by reference to two questions: (1) 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 Arnotts. (2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the subpoenaed party]."
16. At another point in his reasons, Beaumont J had said that it was sufficient that the documents could "possibly throw light" on the issues in the substantive proceedings: at 103. As Gleeson JA pointed out in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 at [24] (Force Corp), the use by Beaumont J of the word "possibly" in this phrase is not used in any speculative sense. As his Honour outlined, it is to be understood as conveying the notion that the documents sought could reasonably be expected to throw light on some of the issues in the proceedings.
17. The reference to "apparent relevance" in the passage from Arnotts (No 2) quoted at [47] above resonates with McLelland J's observation in Glastonbury set out at [43] above, namely that "[p]rima facie documents of the general kind described in the subpoena would not appear to me to be relevant to any issue in the proceedings" (emphasis added). Both McLelland and Beaumont JJ were concerned with the same inquiry: see also, employing the language of "apparent relevance", Hatton; Brand v Digi-Tech [2001] NSWSC 425 at [35] (Brand); Portal Software at [20]-[24]; Force Corp at [22]; Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 at [12] (Lowery); and D v Australian Financial Security Authority, formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50 at [56] ("sufficient apparent connection").
18. In at least one part of his Honour's judgment in Carroll v The Attorney-General for New South Wales (1993) 70 A Crim R 162 at 181 (Carroll), Mahoney AP also employed the language of "apparent relevance": "Where documents are subpoenaed in a proceeding, and no objection is taken to their production to the court, it does not follow that the parties subpoenaing them have the right to have them for inspection. The documents are produced to the court. If objection is taken to the inspection of them by the parties subpoenaing them, it must appear, to put the matter generally, that the documents are relevant to an issue for determination by the court in the proceeding." (emphasis added).
19. In Carroll at 181, Mahoney AP also drew a distinction between a subpoena issued to a party and one issued to a third party, observing that, in the latter case: "To an extent, the court will allow to a party subpoenaing documents a somewhat broader latitude in obtaining for inspection documents from a third party which, being from a third party, could not have been obtained on discovery or otherwise in the proceeding: see Commissioner for Railways v Small (1938) 38 SR 564 at 573; Burchard v Macfarlane [1891] 2 QB 241 at 147-148, 251."
20. In Burchard v Macfarlane [1891] 2 QB 241, Lord Esher MR, having noted that, prior to the Judicature Acts, there was no such thing as a bill of discovery against third parties (at 247), referred to the subpoena duces tecum and said that if an objection was taken to access the document or documents produced, "[a]ll that could be done was that the Judge, when he was satisfied that it was evidence in the case for either of the parties, might order it to be read": at 248 (emphasis added). One does not see in this judgment any reference to the subpoena needing to be justified as assisting the case of the party that issued it.
21. The same point may be made by reference to the earlier decision of Sir James Knight-Bruce VC in Phelps v Prothero (1849) 2 De G & Sm 274; [1849] 64 ER 123 at 130, where it was said: "The deeds are not sought for the purpose of discovery. The contract seems to me to be a document of title, which the company, or the servants of the company, are (as I understand the law applicable to cases of this description) entitled to protect, or entitled to withhold. As to the other documents, it may, as a general rule, be true that, when a witness is required to produce documents in his custody, he ought to produce them simply, and leave to the Court adjudicating between the parties to decide whether they are evidence. But my impression is that, on a motion of this kind, the Court is bound to exercise a discretion not to order a document to be produced unless some reason is shewn rendering it probable that it will be evidence between the parties in the cause. Now, as to the documents in question - beyond the contract - I do not see any ground for supposing that they would be evidence between the parties upon the record, and I do not think that the Court ought to compel the private documents of a third person to be produced without some probability, to say the least, of their being useful for some purpose between the parties. Upon this ground, without entering into other objections, and without giving any opinion upon them, I think that the Court ought not to interfere." (emphasis added).
22. In both Arnotts (No 2) and Botany Bay, Beaumont J and Powell J referred to this Court's decision in Waind. In Waind at 384-385, Moffitt P had drawn attention to the observations of Bayley B in Summers v Moseley (1834) 2 Cr & M 477 at 486; (1834) 149 ER 849 at 852 (Summers), which the then President observed "put the power in relation to a subpoena duces tecum in its simplest form". In Summers at 852, the Baron had said: "Has not the king for the benefit of the subject a power to require a third party to do that which is essentially requisite for the purposes of justice. The course of justice would be most defective if there were not such a power inherent in the crown as the source of justice."
23. In Waind at 384, elaborating on this passage and answering one of a series of rhetorical questions his Honour had earlier posed including whether a judge has a discretion to permit the use of the documents in any such way as he considers will aid a "proper decision of the issues between the parties", by "facilitating the elucidation of the truth in respect of relevant facts", Moffitt P said that: "It is difficult to see why to do that which is 'requisite for the purpose of justice' should be restricted by some arbitrary limit. Of course, the concept of what is requisite for the purpose of justice, and how the compromise between the requirements of justice between litigants and the rights of a stranger should be met, may change and, indeed, be different now from the concepts of last century, just as concepts as to what is appropriate between parties has changed in favour of fuller disclosure of relevant matters." Later in his decision (at 385), Moffitt P said: "As I understand past practices, where, however, objection is raised by the owner of the documents, the judge examines the documents with some care to ensure there is no abuse of the subpoena, and to determine whether the documents appear relevant in the sense that they relate to the subject matter of the proceedings, in which event he will permit inspection by one or both parties at an appropriate time… If apparently relevant, I do not see how the objections of the stranger could prevent their admission in evidence, by consent or otherwise, or the inspection which may lead to this occurring." (emphasis added).
24. In Lane v The Registrar of The Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245 at 259; [1981] HCA 35, the High Court observed that a "subpoena to produce documents is an important means of establishing the facts in issue in litigation and thereby enabling justice to be done." Again one can see the correlation drawn between the use of subpoenas to facilitate justice by requiring production of documents apparently relevant to or capable of casting light on the matters in issue in the litigation. This is a line of authority that can be drawn back through Waind to Summers.
25. This is no doubt one of the reasons why medical and telephone records, for example, are frequently the subject of subpoenas, even though it will not be known or knowable ex ante whether or not the subpoenaed material will, or is likely to, assist the party issuing the subpoena. To insist on such an added requirement would, as Brereton J observed in A v Z, "require an issuing party to be able to predict the contents of documents potentially relevant, and would unduly constrain the ability of litigants to investigate the facts": at [18]. So long as the subpoena can plausibly be seen to relate to an issue or issues in the proceedings or to "cast light" on such an issue (see R v McPhail (1988) 36 A Crim R 390 at 404-405), and the subpoena is not in other respects either too vague or oppressive, it should not be set aside, nor should the inspection of documents produced be refused.
26. As Moffitt P observed in Waind, writing in 1978, "concepts as to what is appropriate between parties have changed in favour of fuller disclosure of relevant matters": at 384. Examining the question more than 40 years later, one important contemporary contextual matter that informs the Court's consideration of the proper use of subpoenas in civil litigation is s 56 of the Civil Procedure Act and its identification of the overriding purpose of that Act and of the Uniform Civil Procedure Rules in their application to civil proceedings, namely to "facilitate the just, quick and cheap resolution of the real issues in the proceedings". An appropriately targeted subpoena may advance the overriding purpose in a particular case, even though it may not be able to be shown that the documents subpoenaed either will or will be likely to assist the case of the party that has issued the subpoena.
27. Another important matter informing the Court's consideration of what is required for the interests of justice in a case such as the present will be the nature of the proceedings and any legislative guidance as to the procedure to be followed in particular classes of proceedings, such as s 38 of the Land and Environment Court Act, extracted at [4] above, which arguably favours a more generous approach to the scrutiny of subpoenas than in ordinary, adversarial civil litigation. The importance of the procedural context in which a subpoena is issued has been identified by Benjamin Coles in "The Confetti of the Justice System - Subpoenas, Justice and Third Parties" (2016) 42(3) Australian Bar Review 385 at 396-398, 407-408.
28. There is a danger in using the language of "tests" for the setting aside of subpoenas and such terminology should, in my opinion, be eschewed. It is sufficient to observe that subpoenas will and should be set aside when they can be seen to involve or amount to an abuse of process as part of the Court's general power to regulate and protect its own processes. Such a power is not to be restricted to defined and closed categories: see CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 392; [1997] HCA 33. The variety of grounds on which a subpoena may be set aside is illustrated by the list of examples supplied by Powell J in Botany Bay at 100 (see [45] above).
29. As Brereton J said in A v Z at [3], a "subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining relevant evidence." Evidence in that sense need not be admissible evidence and, as Samuels JA observed in Maddison v Goldrick at 663, documents subpoenaed for the purposes of cross-examining a witness have been treated as documents required for the purposes of evidence. This extends to cross-examination on issues of credit: see, eg, Brand at [36]; Norris v Kandiah [2007] NSWSC 1296 at [3]; and Liristis v Gadelrabb [2009] NSWSC 441 at [5] (Liristis). In Liristis, copies of the plaintiff's criminal records regarding any convictions for dishonesty, particularly perjury, and any convictions under the Oaths Act 1900 (NSW) were successfully subpoenaed in circumstances where there was evidence before the Court that an earlier conviction for perjury had been quashed but a new trial ordered; see also Lowery at [10], [54]
30. The use of subpoenas to obtain documents that may be used in cross-examination is also illustrated by the decision of the Queensland Court of Appeal in R v Spizzirri (2000) 117 A Crim R 101; [2000] QCA 469 at [24], and the Full Court of the Supreme Court of South Australia in Carter v Hayes (1994) 61 SASR 451 at 453; (1994) 72 A Crim R 387 (Carter), where King CJ (with whom Bollen and Mullighan JJ agreed) said: "The material sought must possess 'evidentiary value' in some sense… A document may have evidential value, in my opinion, not only because it is admissible in evidence but also, even if it is not so admissible of itself, because it provides material of value for cross-examination… or discloses 'information which may be established in some other admissible form'." (citations omitted).
31. What these decisions as well as Alister illustrate and confirm is that a party issuing a subpoena will not necessarily lack a legitimate forensic purpose if he, she or it is unable to establish that the documents sought by way of subpoena will assist or be likely to assist the issuing party's case - the "test" effectively contended for by the Secretary in the present case.
32. But it does not follow - and this is the vice in the Secretary's submissions - that the fact that it may not be able to be shown that the subpoenaed documents will or are likely to assist the party that has issued the subpoena (or that it is "on the cards" that that party will be assisted) means that the issuing party lacks a legitimate forensic purpose. Putting the matter slightly differently, that the issuing party is likely to be assisted in its case by production of the subpoenaed documents may make it more likely that that party's purpose will be held to be legitimate, but the issuing party's inability to show that the subpoenaed documents are likely to assist its case will not necessarily mean that the subpoena has not been issued for a legitimate forensic purpose. It may, however, depending on the circumstances of the case, be more difficult to establish the legitimacy of the forensic purpose in such circumstances.
33. It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are "apparently relevant" or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.
34. That a subpoena need not necessarily or automatically be set aside if it cannot be shown that the material sought will not or will not be likely to assist the party issuing the subpoena is also supported by a number of intermediate appellate authorities not already referred to. Thus, in Santos Ltd v Pipelines Authority of SA (1996) 66 SASR 38 at 52, Debelle J, with whom Cox and Prior JJ agreed, stated that a "party seeking to uphold the issue of a subpoena seeking documents must prove that the documents have an apparent relevance to the issues in the arbitration." This decision was referred to by Brereton J (as his Honour then was) in Portal Software at [29].
35. In Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 100 at [34], Young JA, referring to Waind, observed that: "In modern litigation, a person is entitled to issue a subpoena and have it answered if there is a legitimate forensic purpose in issuing the subpoena, that is, that he or she has a reasonable cause to believe the documents subpoenaed have the capacity to throw some light on the issues in the proceedings; see eg National Employers' Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372."

Apparent relevance and fishing

1. There is a plain difference between "apparent relevance" and "fishing", the latter being the metaphor that is frequently deployed in this area of discourse: see, for example, The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; (1938) 55 WN (NSW) 215. The word "apparent" admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.
2. If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is "not sufficient", and a similar statement in Carroll at 182 that "mere relevance is not enough" may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena: "must be able to indicate that the document is relevant in the sense that it may assist his case. In the present case, that could not be claimed. Nor was it shown. At best, the claim was: 'I wish to see the document to see if it may assist my case.' That, in my opinion, is not sufficient." There is a very subtle distinction at play in this passage which, in my view, is undesirable, is inconsistent with many of the authorities referred to above, and has the potential to lead to the unwarranted setting aside of subpoenas or refusals to inspect documents. Where apparent relevance of the documents subpoenaed to the issues in the case or to the cross-examination of a witness or witnesses is established, this should not generally lead to the setting aside of a subpoena. As King CJ put it in Carter at 453, where a document or documents sought by subpoena by their nature have a "bearing on the issues in the case and may well have evidentiary value", a subpoena seeking such a document or documents will not amount to fishing.
3. Of course it will remain the case that, if it can be demonstrated that the party issuing the subpoena has done so for some improper, illegitimate or ulterior purpose foreign to the litigation, the Court in the exercise of its discretion may set aside the subpoena as an abuse of process or refuse access to the subpoenaed documents in spite of their apparent relevance. Provided, however, that the documents sought are apparently relevant to the issues that have or are likely to arise in the proceedings or have some evidential value (which may extend to value for the purposes of cross-examination, including testing the credit of witnesses including expert witnesses), to the extent it may be necessary to establish a legitimate forensic purpose, such a purpose may be presumed.
4. The converse of this, namely the absence of any apparent relevance (in the broad sense of that term) of the documents sought to be subpoenaed to the issues in the case, may warrant a conclusion of a lack of legitimate forensic purpose and be a sufficient ground to set aside a subpoena or a part of a subpoena: see Portal Software at [22]. That is because, if the documents subpoenaed do not meet the relatively low threshold of apparent relevance, it may readily be inferred that the documents are being sought for some purpose foreign to the litigation. That may not have been the issuing party's motivation, but the lack of apparent relevance test is a convenient means of delimiting that which is legitimate.
5. In civil as opposed to criminal proceedings, in most cases, the issues will in the first instance have been identified and defined by the pleadings and particulars. The issues are frequently further refined by amendments to the pleadings and upon the service of witness statements and affidavits. This is a key difference between civil and criminal proceedings and, to the extent a different test or approach is taken in criminal proceedings, it may be explained by the absence of pleadings and the very different procedural context in which criminal proceedings take place. As explained below, the procedural landscape in relation to criminal proceedings has also changed significantly over recent decades.
6. For completeness, something should also be said about onus. In Portal Software at [28]-[29], Brereton J observed that the fact that an application to set aside a subpoena amounts to an assertion of an abuse of process suggests that ordinarily some onus would lie on the person contending that there is such an abuse of process to make that allegation good, before noting that the issuing party at least bears a forensic onus of showing the relevance of the documents sought to the issues in the proceedings. His Honour noted that the rationale for this was that a non-party will not usually know what the issues are in the proceedings so as to be able to demonstrate irrelevance of the documents sought to be subpoenaed.

The argument based on Chidgey and Alister

1. To return to the Secretary's argument, it was submitted that the "test" for setting aside a subpoena in civil proceedings should be no less demanding than in criminal proceedings, namely that summarised by Beazley JA in Chidgey and noted at [15] above, this being a test that derived ultimately from Hunt J's decision (as his Honour then was) in R v Saleam (1989) 16 NSWLR 14; (1989) 39 A Crim R 406, and which may be traced through Stuart and Saleam in the Court of Criminal Appeal. Hunt J's decision in turn drew on Alister.
2. The Secretary placed heavy emphasis on a passage in the judgment of Brennan J (at 456), as well as in the relevantly dissenting joint judgment of Wilson and Dawson JJ (at 439) in Alister to the effect that a more liberal approach should be taken to the inspection of documents by the Court in criminal proceedings as opposed to civil proceedings. It is important to appreciate the very particular context in which Brennan J made this observation, namely a claim for public interest immunity in a case where the "central issue was whether the accused had been framed by security forces": at 456. Brennan J went on to say (at 456) that: "The more liberal approach is required to ensure, so far as it lies within the court's power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law."
3. Just as it is important to appreciate the very special context in which Brennan J made his observations about the adoption of a liberal approach to the inspection of documents on a contested application for production of documents, so also, as Moffitt P observed in Waind in the passage cited at [55] above, conceptions of what justice requires in a particular context may change over time and with changes in circumstances. In this context, there has been a sea change in the law relating to disclosure in the criminal law in the decades since Maddison v Goldrick, Alister and R v Saleam (1989) 16 NSWLR 14; (1989) 39 A Crim R 406 were decided.
4. Thus in R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [46]ff (Reardon), the Court of Criminal Appeal adopted the principles concerning the prosecution's duty of disclosure stated by the English Court of Appeal in R v Keane [1994] 1 WLR 746 at 752; [1994] 2 All ER 478, to the effect that: "the prosecution must disclose documents which are material; ...documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b)." Hodgson JA stated that the prosecutor was obliged to take a broad view of relevance, for the purpose of disclosure: Reardon at [58]; see also Cornwell v R [2010] NSWCCA 59 at [298], where Simpson J (as her Honour then was) said: "A prosecuting authority will be expected voluntarily to disclose material in its possession that, 'on a sensible appraisal', can be seen to come within any of the three identified categories; it will be expected to produce, on request by an accused, or subpoena issued by the court, such material, if a 'legitimate forensic purpose' for requiring its production is demonstrated: Saleam v R (1989) 16 NSWLR 14. It is hardly necessary to say that if, 'on a sensible appraisal', material the subject of request or subpoena, not previously recognised as coming within any of the three categories, can be seen to do so, a 'legitimate forensic purpose' will have been demonstrated."
5. Further, in Gould v Director of Public Prosecutions (Cth) (2018) 333 FLR 352; [2018] NSWCCA 109 at [65], Basten JA (with whom Johnson and Adamson JJ agreed) explained that the "duty of disclosure extends to material which might open up useful lines of inquiry to the defence, without any narrow view being taken of what might be relevant" (footnote omitted).
6. The statement made by Brennan J in Alister about the need for a liberal approach to be applied to the inspection of documents in circumstances where access is opposed, so heavily relied upon by the Secretary in oral argument in this case has, in my view, very little general application to the proper approach to be taken either to the setting aside or the grant of access to documents produced on subpoena in civil proceedings. Even to the extent it may have had some application to documents produced in answer to a subpoena in a criminal case, it must be understood in its historical context. That context has changed significantly in terms of disclosure in criminal cases in the almost four decades since Alister was decided.

Conclusion

1. My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in Saleam at [11], it can: "(i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is 'on the cards' that the documents will materially assist his case", at least in civil matters, an inability to demonstrate that it is "on the cards" that the documents sought will materially assist the subpoenaing party's case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.
2. For these reasons, the Secretary's argument should be rejected. The primary judge was correct in not setting the subpoena aside. Since preparing these reasons, I have also had the benefit of reading the reasons for judgment of Brereton JA. Save for our difference as to what was decided by this Court in ICAP and as to whether or not the primary judge was in error in her understanding of what that case stood for, I am in agreement with his Honour's valuable analysis of the practically important question presented by this application.
3. Leave to appeal should be granted but the appeal should be dismissed with costs.
4. BRERETON JA: The essential place of the subpoena for production of documents in the Court's armoury to do justice has been recognised at least since, in Summers v Moseley, in a passage referred to in this Court by Moffitt P in National Employers' Mutual General Association Ltd v Waind; Waind v Hill, [1] Bayley B said: [2] "Has not the king for the benefit of the subject a power to require a third party to do that which is essentially requisite for the purposes of justice. The course of justice would be most defective if there were not such a power inherent in the crown as the source of justice."
5. In modern litigation, the subpoena for production is crucial to the ability of a party to investigate the facts and assemble evidence to prove a case. That is particularly so in civil litigation, where a plaintiff does not have the extra-curial investigative powers that are available to police and prosecutors in the criminal context.
6. Because the use of subpoenas is so widespread, it is unsurprising that interlocutory applications to set aside such subpoenas are frequently encountered, and routinely disposed of, by judges or registrars at first instance. Ordinarily, as such applications involve questions of practice and procedure, decisions in respect of them are not apt for review by this Court. However, history shows that from time to time the pronouncements of this Court pertaining to the law of subpoenas have provided enduring guidance on generic questions of principle in this field. [3] The present application for leave to appeal raises the question whether, at least in the context of civil proceedings, for there to be a legitimate forensic purpose for the issue of a subpoena, it is necessary that the documents the subject of the subpoena will likely materially assist the case of the issuing party, or whether it suffices that the material called for will likely add, in the end, in some way or other, to the relevant evidence in the case. That is a question about which there has been some controversy, the resolution of which will provide clarity on an issue of general principle. Leave to appeal should be granted.
7. I have had the benefit of reading in draft the judgment to be delivered by Bell P. I agree with his Honour that the primary judge did not err in holding that it was not necessary, in order to demonstrate a legitimate forensic purpose for the issue of a subpoena, that the documents sought would likely materially assist the case of the party that issued the subpoena, and consequently did not err in dismissing the application to set aside the subpoena. For myself, however, I am inclined to the view that her Honour also did not misread this Court's decision in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd. [4]
8. The controversy in this area has arisen because, as Sully J pointed out in Re Don [5] in the passage set out in the President's judgment, [6] some of the cases are criminal and some civil, some involve claims for public interest immunity, and some deal with the question of access to documents produced as distinct from the issue of the subpoena. [7] To those contributing factors might be added that some deal with the context of discovery rather than of subpoenas for production. As a result, rules applicable in one context have sometimes been applied in a different context without regard to the historical and conceptual distinctions.
9. Although, as McCallum JA observes [8] with reference to those observations of Sully J, it may be undesirable to propound a test, at least at too specific a level, as to when a subpoena should be set aside, some general principles which inform the proper approach can be stated. The first is that the power of the Court to set aside a subpoena, in whole or in part, is but an instance of its power to regulate its processes and, in particular, to intervene in a case of abuse of its process. [9] The second is that, the notion of "legitimate forensic purpose" being the converse of "abuse of process", a subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining apparently relevant evidence. [10]
10. I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required to show that it is "likely" (or "on the cards") that the documents sought will materially assist its case, as distinct from that it is "likely" (or "on the cards") that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether 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 the subpoena. In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case. [11] This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; [12] that they "appear relevant in the sense that they relate to the subject matter of the proceedings"; [13] or that they could possibly throw light on the issues in the case. [14] Moreover, documents will add "in some way" to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence. [15]
11. The applicant's submission that it is an essential element of legitimate forensic purpose that it is "likely" - or, "on the cards" - that the documents sought will materially assist the issuing party's case, and that it is insufficient for an issuing party to establish merely that the documents were or might be relevant, invokes statements in Attorney-General (NSW) v Chidgey [16] and ICAP. [17] As I have endeavoured to explain elsewhere, [18] the supposed requirement that it be likely that the documents sought will "materially assist the issuing party's case" has, in the cases which employ that phrase, been permitted to migrate from a rule which was once but is no longer applicable to the law of discovery, [19] to the different context of a subpoena for production, without recognition of the historical and conceptual distinctions between the processes. Moreover, that has occurred in a context which has been complicated by an overlapping claim for public interest immunity. The broader approach which I favour is supported by authority, including of this Court. [20] The stricter test would require an issuing party to be able to predict the contents of potentially relevant documents, and unduly constrain the ability of litigants to investigate the facts, for example, by issuing subpoenas for production of medical records and telephone records, unless the issuing party was able reasonably to predict that they would favour its case.
12. It is unnecessary to resolve whether the same rule applies in criminal cases. While the argument that if anything a more generous approach should apply in criminal cases at first sight has much attraction, the observation on which it is founded was made in the context of a claim for public interest immunity, [21] and does not establish a general rule concerning subpoenas. The approach which has been adopted in the criminal context has been much influenced by that applicable to public interest immunity claims, and, as the President explains, in times when a much narrower view was taken of an accused person's entitlement to disclosure than now prevails. The changes which have taken place in that respect may support the extension to criminal cases of the test applicable to subpoenas in civil cases. On the other hand, as I have mentioned, police and prosecutors in criminal cases have extra-curial investigatory powers not available to parties in civil cases, which may explain a distinction.
13. As the President shows, ICAP does not provide authoritative guidance in any event, because it was a refusal of an application for leave to appeal from the judgment of Nicholas J, who stated the test in terms that I favour: [22] "[I]t must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will."
14. Nicholas J did not refer to any requirement that the "material assistance" be to the party that issued the subpoena. It is true that in this Court, Tobias JA (with whom Basten JA and Handley AJA agreed), said that there was: [23] "[M]ore than sufficient authority to support his Honour's reference at [30] of his judgment to the requirement that the documents the subject of the subpoena "will materially assist" the applicants' case." (emphasis in original)
15. However, in my view, that paragraph was not addressing the question of whether it was part of the test that the documents sought materially assist the issuing party. First, the emphasis given to the words "will materially assist" shows that the paragraph was addressing the degree of relevance required, rather than whose case would be assisted. That this is so is reflected in the circumstance that Tobias JA evidently perceived no difference between what he was expressing and the different words used by Nicholas J, "will materially assist on an identified issue", which did not include any reference to "the applicants' case". Secondly, this passage followed the following discussion of A v Z: "[15] During the course of argument, reference was made to a number of authorities which were not referred to by the primary judge. It is necessary to only refer to some of those decisions. [16] The first is that of Brereton J in A v Z [2007] NSWSC 899; (2007) 212 FLR 255 where at 257 [4] his Honour said:

"There is no doubt that, at the least, a subpoena is not issued for a legitimate forensic purpose unless there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case." [17] However his Honour continued: "However, there is room for doubt as to whether the requirement goes further, such that rather than merely adding in some way or other to the relevant evidence in the case or possibly throwing light on the issues in the case, it is necessary that it be likely that the material called for will 'materially assist the case of the issuing party', although I acknowledge that at first sight, there is significant authority for that proposition. It appears to have its origin in Air Canada v Secretary of State for Trade [1983] 2 AC 394." [18] In that passage his Honour was not cavilling with the use in the test of the word "likely" but with the requirement that the documents the subject of the subpoena will "materially assist the case of the issuing party" as distinct from "merely adding in some way or other to the relevant evidence in the case". In my view that distinction does not assist the applicants in the present case as it was accepted that the documents were sought to support the applicants' case on the issue of causation."

1. As I understand that passage, it does not involve any disagreement with A v Z. The issue in ICAP was the whether the test required that it be "likely", or "on the cards", that the documents sought would assist; it was concerned with the degree of likelihood that the subpoena would capture relevant documents, not with whether the documents would likely "materially assist the case of the issuing party" as distinct from "merely adding in some way or other to the relevant evidence in the case". The Court simply did not consider the latter question, because there was no issue about it, "as it was accepted that the documents were sought to support the applicants' case on the issue of causation". As the primary judge considered, [24] the effect of ICAP is that the relevant test is whether or not it is likely that the documents sought will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will materially assist on an identified issue; ICAP is silent as to whether it is necessary that it be likely that the documents will materially assist the issuing party's case.
2. In any event, I agree with Bell P that her Honour was right to hold that it was unnecessary for the Council to demonstrate that the documents sought to be produced would materially assist its case, and sufficient to establish that the documents would assist on an identified issue. [25]
3. I agree with the orders proposed by Bell P.
4. McCALLUM JA: I have had the benefit of reading the judgment of Bell P in draft. I agree with his Honour's conclusion that there was no relevant error in the primary judge's decision not to set aside the subpoena. Subject to what follows, I agree with his Honour's reasons for reaching that conclusion. I would particularly endorse his Honour's observation as to the danger in purporting to formulate a definitive "test" for setting aside a subpoena and would in that context echo the remarks of Sully J in Re Don set out in his Honour's judgment.
5. In light of my agreement on that issue, it is not necessary to consider the primary judge's analysis of this Court's decision in ICAP save to note two matters. First, as explained by the President, contrary to her apprehension, the primary judge was not bound by that decision as it was the refusal of an application for leave to appeal. Secondly and in any event, I am not persuaded that the primary judge erred in her analysis of that decision.
6. Since writing this judgment I have had the benefit of reading the judgment of Brereton JA in draft. I agree with his Honour's additional remarks.
7. I agree with the orders proposed by the President.

Endnotes

1. [1978] 1 NSWLR 372 at 384 (Moffitt P; Hutley and Glass JJA agreeing) ("Waind").
2. (1834) 2 Cr & M 477 at 486; 149 ER 849 at 852 (Bayley B for the Court).
3. See, eg, Waind; Commissioner for Railways v Small (1938) 38 SR (NSW) 564; 55 WN (NSW) 215 ("Small").
4. [2009] NSWCA 307 ("ICAP").
5. [2006] NSWSC 1125 ("Re Don").
6. Above at [33].
7. Re Don at [25] (Sully J).
8. Below at [98].
9. Portal Software v Bodsworth [2005] NSWSC 1115 at [19] (Brereton J); Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 (Powell J) ("Botany Bay").
10. Botany Bay at 100C (Powell J); Small at 573-575 (Jordan CJ; Davidson and Owen JJ agreeing).
11. Waind at 384 (Moffitt P; Hutley and Glass JJA agreeing).
12. Small at 573-575 (Jordan CJ; Davidson and Owen JJ agreeing): "relating to … the matter" (at 573), "throw light on a dispute" (at 573), "relevant" (at 574), "sufficiently relevant" (at 575).
13. Waind at 385 (Moffitt P; Hutley and Glass JJA agreeing).
14. Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306 (abridged version only); (1989) 88 ALR 90; [1989] FCA 340 at [46] (Beaumont J) ("Arnotts"); cf Small at 573 (Jordan CJ; Davidson and Owen JJ agreeing).
15. Liristis v Gadelrabb [2009] NSWSC 441 at [5] (Brereton J); Norris v Kandiah [2007] NSWSC 1296 at [3] (Brereton J); Brand v Digi-Tech [2001] NSWSC 425 at [36] (Hunter J) ("Digi-Tech"); Maddison v Goldrick [1976] 1 NSWLR 651 at 663 (Samuels JA; Street CJ and Moffitt P agreeing).
16. (2008) 182 A Crim R 536 at 550-551 [59]-[64] (Beazley JA; James J and Kirby J agreeing); [2008] NSWCCA 65, citing R v Saleam [1999] NSWCCA 86 at [11] (Simpson J; Spigelman CJ and Studdert J agreeing).
17. At [20]-[21] (Tobias JA; Basten JA and Handley AJA agreeing).
18. See Sharpe v Grobbel [2017] NSWSC 1065 at [34]-[35] (Brereton J); A v Z (2007) 212 FLR 255 at 257-260 [4]-[16] (Brereton J); [2007] NSWSC 899 ("A v Z").
19. As in Air Canada v Secretary of State for Trade [1983] 2 AC 394; 1 All ER 161 (CA), 910 (HL(E)).
20. Digi-Tech at [33]-[42] (Hunter J); Arnotts at [44]-[46] (Beaumont J); Waind at 384 (Moffitt P; Hutley and Glass JJA agreeing).
21. Alister v The Queen (1984) 154 CLR 404 at 439 (Wilson and Dawson JJ), 456 (Brennan J); [1984] HCA 85.
22. ICAP Pty Ltd v Moebes [2009] NSWSC 306 at [30] (Nicholas J).
23. ICAP at [21] (Tobias JA; Basten JA and Handley AJA agreeing).
24. Hong v Blacktown City Council [2021] NSWLEC 38 at [62] (Pepper J) ("Primary judgment").
25. Primary judgment at [69] (Pepper J). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 July 2021