Subpoenas [2005] NSWLC 5

[1] One of the many worthwhile changes that occurred on the repeal of the Justices Act, 1902 was that subpoenas in the Local Court now have force at law precisely the same as the other jurisdictions within New South Wales. Accordingly, practitioners should be aware of a number of fundamental principles. These principles are the same for both the criminal and civil jurisdictions. Different statutory provisions apply. The Uniform Civil Procedure Rules will come into effect later this year. Accordingly, I will refer to Part 33 of those Uniform Civil Procedure Rules, rather than the specific Rules in place in each of the three jurisdictions. "A subpoena duces tecum is a writ which is issued by the Court as a course upon application by praecipe by or on behalf of a party to a cause or matter commanding some person or persons to attend before the Court to give evidence, and also to search for, bring and produce to the Court some document or documents relating to the cause or the matter. In form, it is a writ of subpoena ad test., with an addendum directing the production of documents. The Court has undoubted jurisdiction to issue such a writ". -Jordon CJ - Commissioner for Railways -v Small (1938) 38 SR (NSW) 564 at 573.

[2] The contents of Part 33 of the proposed Uniform Civil Procedure Rules do not differ in any significant manner from Part 37 of the current Supreme Court Rules - i.e. the Part of the Rules that deals with subpoenas. Some of the more relevant provisions are summarised hereunder. Some of the proposed Uniform Civil Procedure Rules - relating to conduct money, applications to set aside a subpoena and objections to access by those producing the documents will be referred to specifically under those headings later in this paper.

[3] Part 33.1 defines a subpoena as "an order in writing requiring the addressee (that is, the person who is the subject of the order expressed in a subpoena) to (a) attend to give evidence, or (b) to produce the subpoena or a copy of it and a document or thing, or (c) to do both of those things.

[4] That same definition section defies Conduct Money as "a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending".

[5] Part 33.2 provides that the issuing officer (officer of the Court who is empowered to issue a subpoena on behalf of the Court) "must seal with the seal of the court, or otherie authenticate, a sufficient number of copies of the subpoena for service and proof of service".

[6] Part 33.3 of the Rules provides for the form of the subpoena. The subpoena must:

• Be in the approved form,
  • It must not be addressed to more than one person,
    • It must (unless the Court otherwise orders) identify the addressee by name or by description of office or position,
    • It must identify the document or thing to be produced, and specify the date, time and place for production;

[7] A subpoena to attend to give evidence must specify the date, time and place for attendance; - The date specified in a subpoena must be the date of trial or any other date as permitted by the Court; - The place specified for production may be the court or the address of any person authorised to take evidence in the proceeding as permitted by the Court; - A subpoena must specify the last date for service of the subpoena, being a date not earlier than 5 days, or any shorter or longer period as ordered by the court and specified in the subpoena; and - If the address is a corporation, the corporation must comply with the subpoena for its appropriate or proper officer.

[8] A subpoena must be served personally on the addressee - see Part 33.5. This has always been the case for the Supreme and District Court- see for example Part 37 Rule 5, but has not been the case for the Local Court - see section 73 of the Local Courts (Civil Claims) Act. After the introduction of the Uniform Civil Procedure Rules, subpoenas in civil matters in the Local Court will need to be served personally. Part 33.6 of the Rules provides however, that "an addressee must comply with the requirements of a subpoena even if it has not been served personally on that addressee if the addressee has, by the last date for service of the subpoena, actual knowledge of the subpoena and its requirements".

[9] Subpoenas to produce documents or things can be complied with by delivering or sending the subpoena or a copy of it and the document or thing to the registrar at the address specified for the purpose in the subpoena, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production - see Part 336 (4)(b). The registrar is required, if requested, to give a receipt for the document or thing - see Part 33.7(2). If the person answering a subpoena provides more than one document or thing, that person is required to give the Registrar a list of what is in fact produced - see Part 33.7 (3).

[10] It has always been the case that no person may inspect a document produced in answer to a subpoena without leave of the Court. This provision is continued by virtue of Part 33.9(3) of the Uniform Civil Procedure Rules. Part 33.9 deals generally with the inspection of documents or other things produced in answer to a subpoena.

[11] Part 33.10 of the Uniform Rules deals with the disposal of documents and other things produced. Unless the Court otherwise orders, the Registrar may, in the Registrar's discretion, return to the addressee any document or thing produced in response to the subpoena - see Part 33.10(1). The Registrar must not unless the Court otherwise orders return any document or thing unless the registrar has given to the issuing part at least 14 days' notice of the intention to do so and that period has expired - see Part 33.10(2). The addressee of a subpoena may inform the registrar in writing that any document or copy of a document produced need not be returned and may be destroyed - see Part 33.7(4). However, the Registrar may not destroy a document or copy of a document unless the registrar has given to the issuing party at least 14 days' notice of the intention to do so and that period has expired - see Part 33.10(4)

[12] Failure to comply with a subpoena without a lawful excuse is a contempt of court and the addressee may be dealt with accordingly - see Part 33.12. The addressee may also be arrested - see Part 33.12(3).

[13] Relevantly, sections 221 and 222 of the Criminal Procedure Act, 1986 provides:

s. 221: Party means a prosecutor or an accused person in, or any other party to, proceedings to which this part applies. Person named in a subpoena means the person to whom the subpoena is addressed.

Subpoena includes any of the following: a subpoena to give evidence, a subpoena for production, a subpoena both to give evidence and for production. Subpoena both to give evidence and for production means a written order requiring the person named to attend as directed by the order as a witness to give evidence and to produce a document or thing. Subpoena for production means a written order requiring the person named to attend as directed by the order and produce a document or thing. Subpoena to give evidence means a written order requiring the person named to attend as directed by the order as a witness to give evidence.

s. 222: (1) A Registrar, if requested to do so by a party to proceedings is subject to and in accordance with the rules, to issue to the person named any of the following subpoenas: a subpoena to give evidence, a subpoena for production, a subpoena both to give evidence and for production. (2) If the prosecutor in proceedings is a public officer or a police officer, the officer may, subject to and in accordance with the rules, issue any such subpoena. The subpoena is to be filed in accordance with the rules. (3) A subpoena to give evidence and a subpoena for production may be issued to the same person in the same proceedings. (4) A party may require a subpoena for production to be returnable: on any day which the proceedings are listed before a court, or any day not more than 21 days before any such day, or with the leave of the court or a registrar on any other day.

[14] The Regulations contain the form of the Subpoena - see for e.g. at page 12,017 of the Butterworth's (Howie and Johnson) Practice.

[15] Part 7 of the Rules deals with Subpoenas. Part 7 rule 42(2) of the Rules provides that a registrar may refuse to issue a subpoena if satisfied that (a) the issue of the subpoena would be an abuse of process, or (b) the issue of the subpoena would be oppressive on the person named, or (c) if the subpoena is a subpoena to give evidence, the subpoena is returnable on a date on which the Court has not directed the hearing of oral evidence in the proceedings.

[16] Part 7 Rule 44 deals with service. Part 7 Rule 44(3) provides that service may be effected by: (a) handing it to the person, or (b) if the person is an inmate of a correctional centre, by handing it to the officer in charge of the correction centre or by sending it by post or facsimile or other electronic transmission to the officer in charge of that correctional centre, (c) if the person is a police officer or a public officer, by sending it by post or facsimile to the person's business address, or (d) if the person is a police officer or a public officer, by sending it by electronic communication to the person's business email address, (e) if the person is not a police officer or a public officer, by sending it by post or facsimile to person's residential address, (f) if the person is not a police officer or a public officer, by sending it by electronic communication to the person's email address, (g) with the consent of the relevant legal practitioner, by leaving it at the relevant legal practitioner's address for service or by sending it to that address by post or facsimile or by sending it to the legal practitioner's email address for service by electronic communication.

[17] Part 7 Rule 44(4) provides that if on tender of a subpoena, the person refuses to accept it, it may be served by putting it down in the person's presence after the person has been told of the nature of the notice.

[18] Section 109 of the Children and Young Persons (Care & Protection) Act 1998 provides: "The provisions of the Criminal Procedure Act 1986 relating to warrants and subpoenas for the attendance of witnesses in proceedings before a Local court for offences punishable on summary conviction apply to:

(a) the attendance of witnesses in proceedings before the Children's Court, and (b) the production of documents in proceedings before the Children's Court,

in the same way as those provisions apply to the attendance of witnesses in proceedings for such offences".

(the writer gratefully acknowledges the assistance of his colleague Mr. R. Maiden on this issue).

[19] Conduct money is defined in Part 33.1 of the Uniform Civil Procedure Rules as "a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending.

[20] In addition, Part 33.11 of the Uniform Civil Procedure Rules provides for payment of costs of expenses of compliance. In particular: The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena. If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the court's usual procedure in relation to costs.

An amount fixed under this rule is separate from and in addition to: Any conduct money paid to the addressee, and Any witness expenses payable to the addressee.- see Part 33 Rule 11(3).

[21] Section 224 of the Criminal Procedure Act provides a Court otherwise orders a subpoena issued at the request of a party other than a prosecutor who is a public officer or a police officer is not to require the person named to attend or produce documents unless an amount prescribed by the rules for the expenses of complying with the subpoena is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day.

[22] Part 7 rule 45 of the Criminal Procedure Rules sets out the prescribed amount. Essentially, the amount payable is same for that contained within the Scale of Allowances Paid to Witnesses published in the Government Gazette.

[23] However, in particular note that Part 7 Rule 45(b) provides that conduct money also includes, "in relation to the production of a document, the reasonable expenses of the person named of complying with the requirement to produce the document".

[24] On the aspect of the payment of conduct money and expenses, it was said by Hodgson CJ in Eq in Harris D-E Pty Ltd -v- McClelland's Coffee and Tea Pty Ltd & Ors [1999] NSWSC 36 at paragraphs [25] to [27] inclusive: "Turning first to the question of expenses, in my opinion it is clear that what has to be provided for is the expense of travel and accommodation essentially, and not compensation for loss that might be caused to the witness by reason of absence from his employment or business. If loss of that kind is claimed, in my opinion that is a matter to be dealt with under Pt. 37 r. 9 of the Rules, which empowers the court to require payment in respect of loss caused to a witness attending Court.

It seems clear that what is required to be tendered, under Part 37 r. 3 and s. 32 of the Service and Execution of Process Act, is money. Part 37 r. 3 refers to a 'sum sufficient'. Section 32(1) refers to 'allowances and travelling expenses' being 'paid or tendered'. However, I think it is also correct to say that, if the witness is provided with appropriate assurance that certain expenses will not be incurred by him at all, then it is not necessary to tender those expenses. That view has some confirmation in the case of Castrucci -v- ACT Electricity Authority (1990) ACTR 1. However, it is insufficient to merely promise that expenses will be reimbursed. Accordingly, it seems to me that the actual tender of an air ticket would be an appropriate assurance that this expense of travel would not be incurred at all. The booking of a witness into a hotel, with an appropriate undertaking to pay being given, would in many circumstances be sufficient assurance to the witness that the expenses of accommodation would not be incurred".

Procedure of having a third party bring documents to court

[25] Moffitt P. (Hutley & Glass JJA agreeing) said in Waind -v- Hill [1978] 1 NSWLR 376 at p. 381 (paragraphs D & E): "As Jordan CJ pointed out in Small's case and as appears in Burchard's case there are at least two steps in the procedure of having a third party bring documents to court. Indeed on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the Judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the Court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decision in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs". [26] His Honour went on to say (p. 381): "Upon the first step the person to whom the subpoena is addressed may seek to, and have, the subpoena set aside on the ground that it was improperly issue and an abuse of power to compel the production of the documents in any one of a number of ways".

[27] In respect of the second stage, his Honour said at pp. 382-2: "The second step is when the documents are produced to the Court by the witness, the subpoena not having been set aside, and any other objection to their production, such as on the ground that they were privileged having been rejected. At this point documents are in the control of the court pursuant to the subpoena. If he (the stranger) states he does not object to the parties inspecting the documents, or by lack of objection is taken to have no objection, no doubt normally there would be little reason not to permit inspection by either party. However, the documents are under the control of the judge and, even if the witness has not objected, there may be good reason in the elucidation of the truth why the judge may e.g. defer inspection by one party or the other".

[28] His Honour went on to say at p. 384: "In my view these dicta, long standing as they are and impressive as is their source, should not be understood as laying down, as would a rule of court, some arbitrary limitation on the exercise of the wide discretion of the judge to permit the documents to be used for the purpose of providing him or the jury, in the end, with the best available evidence testing by the accepted procedures of cross-examination".

[29] In respect of the third stage his Honour said at p. 385: "It is at the third step that questions between the parties of relevance in fact and admissibility are ruled upon…However, the limitation on the exercise of the judge's discretion to allow inspection is that the document contains information of apparent relevance to the issues. Once the judge has that opinion, inspection will normally be allowed, notwithstanding that the document is not admissible as it stands, and notwithstanding that the party seeking inspection has not given any undertaking to tender it, or use it in cross-examination. The discretion is one concerning the invasion by the subpoena procedure of the rights of a stranger by the party who seeks inspection in aid of the presentation of his case to the court. No right of the opposing party is involved in making an order permitting inspection of the stranger's documents".

[30] A successful application to have a subpoena set aside renders the subpoena void ab initio, and accordingly, relieves the addressee from producing to the Court the documents or things referred to within the subpoena.

[31] Part 33.4 of the Uniform Civil Procedure Rules provides that: "The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in party, or grant other relief in respect to it. An application under subrule (1) must be made on notice to the issuing party. The court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest."

[32] Section 227 of the Criminal Procedure Act provides: A court may, on application by the person named in a subpoena, set aside the subpoena wholly or in part.

Notice of an application under this section is to be filed and served as prescribed by the Rules on the party on whose request, or by whom, the subpoena was issued.

[33] Part 7 Rule 49 of the Criminal Procedure Rules provides that the notice of application must be in the approved form, that a copy of the notice of application must be served by the applicant on the party on whose request the subpoena issued, either personally or by post, a copy of the notice of application must be filed by the applicant with the court before the subpoena is returnable - which unless the Court otherwise orders is not less than 3 days prior to the date on which the subpoena is returnable, and that the applicant seeking to have the subpoena set aside must appear before the Court on that date to have the Court deal with the application.

[34] Powell J. (as he then was) in Botany Bay Instrumentation and Control Pty Ltd & Anor -v- Stewart & Anor. [1984] 3 NSWLR 98 said at p. 100 (paragraphs B to G inclusive): "Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases for example:

1. unless the subpoena was issued for the purpose of a pending trial, hearing or application: see, for example, Central News Co -v- Eastern News Telegraph Co. (1884) WN (Eng) (Matthew J); 53 LJ QB 236 (Divl Ct); Elder -v- Carter; Raymond -v- Tapson. 2. where to require the attendance of a witness would be oppressive: Raymond -v- Tapson; Re Mundell; Fenton -v- Cumberlege; 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; R -v- Baines; R -v- Hove Justices; Ex parte Donne; 4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party: Commissioner for Railways -v- Small; Waind -v- Hill; Finnie -v- Dalglish; 5. where the subpoena has been used for the purpose of obtaining discovery against a third party: Burchard -v- Macfarlane; Ex parte Tyndall; Commissioner for Railways -v- Small; Senior -v- Holdsworth; Ex parte Independent Television News Ltd; Waind -v- Hill; Finnie -v- Dalglish; 6. where to require a party to comply with the subpoena would be oppressive: Commissioner for Railways -v- Small; Senior -v- Holdsworth; Ex parte Independent Television News Ltd; Waind -v- Hill; Finnie -v- Dalglish 7. where the subpoena has been issued for a purpose which is impermissible, as, for example, "fishing": Hennessy -v- Wright (No. 2) (1888) LR 24 QBD 445(n) at 448; Griebart -v- Morris [1920] 1 KB 659 at 664, 667, Commissioner for Railways -v- Small at 574; the authorities do not make clear whether such classes of case to which I have referred above are to be regarded as the only cases in which the court will intervene, or, whether such cases are to be regarded as merely particular examples of a broad class of case in which the court will intervene to exercise its jurisdiction to set aside a subpoena, or, indeed, whether the jurisdiction to set aside a subpoena is but one part of a wider jurisdiction of the court".

[35] His Honour came to the conclusion at p. 101 at paragraph A that the court's jurisdiction to set aside a subpoena "is but one aspect of the court's jurisdiction to act to prevent an abuse of process".

[36] Another relevant observation by Jordan CJ (Davidson & Owen JJ concurring) in Commissioner for Railways -v- Small is at p. 573: "If it (a subpoena) be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter".

[37] On this same aspect Moffitt P. (Hutley and Glass JJA agreeing) in Waind -v- Hill [1978] 1 NSWLR 376 at 382 said: "it is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party".

PRIVILEGE AND OTHER MATTERS PREVENTING ACCESS TO DOCUMENTS PRODUCED IN ANSWER TO A SUBPOENA

[38] Generally, the grounds of privilege on which a stranger to the litigation can make application to prevent or restrict access to documents are set out in sections 117 to 131 inclusive of the Evidence Act, 1995. A claim for privilege is precisely that. Ordinarily, it would not be sufficient to ground an application for a subpoena to be set aside. Some aspects of privilege have been expanded upon by decisions of the appellate courts - see for example Esso Australia Resources Limited -v- Commissioner of Taxation (1999) 201 CLR 49 and R -v- Young (1999) 46 NSWLR 681. The starting point of any claim for privilege should be, however, the relevant section(s) of the Evidence Act, 1995.

s. 133 Evidence Act - Court to inspect document to determine question

[39] Note in particular s. 133 of the Evidence Act 1995 that provides: s. 133 - If a question arises under this Part relating to a document, the court may order that the document be produced to it and may inspect the document for the purpose of determining the question.

[40] This matter is not contained within the Evidence Act 1995, but is nevertheless a relevant matter of which practitioners should be aware. It only applies in criminal proceedings. Hunt J. (as he then was) in R -v- Saleam (1989) 16 NSWLR 14 at p, 18 (paragraph C) said: "In my view, when a trial judge is faced with a subpoena of this kind, he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made".

[41] However, his Honour went on to observe (paragraphs C- D): "Sometimes that purpose will not become apparent (even to counsel for the accused who had advised the issue of the subpoena) until the trial has been under way for some time, and the judge's initial refusal to permit inspection should always be open to review".

[42] Practitioners can also take heart from what his Honour said at p. 19 (para B) in that: "On the other hand, nor should I be understood by what I have said so far as encouraging Crown Prosecutors to take blanket objections to every document of which production is sought on the ground that no legitimate forensic purpose is served by its production…As Samuels JA (in Maddison -v- Goldrick [1976] 1 NSWLR 651) suggested (pp. 667-8), an accused is prima facie entitled to inspect any document which may give him the opportunity to pursue a proper and fruitful course in cross-examination".

[43] There is one other matter of importance in the judgment of Hunt J. in Saleam. It follows on from the need for the accused to show legitimate forensic purpose. As can be readily ascertained from the above, and in particular what was said by Jordan CJ in Commissioner for Railways -v- Small and by Powell J (as he then was) in Botany Bay Instrumentation and Control -v- Stewart it is impermissible to use a subpoena as a substitute for discovery. Hunt J. in Saleam said at p. 19 (paragraph D): "…The references in judgments of the High Court in Alister -v- The Queen to the rights of a party seeking to inspect documents produced on discovery …have apparently been interpreted by some practitioners as having been intended to overrule the longstanding principle that there is no discovery in criminal cases. This interpretation has encouraged the issue of subpoenas which have been issued nakedly for the purpose only of discovery. Such an interpretation of Alister's case betrays a misunderstanding of what was said…"

[44] The concept of legitimate forensic purpose also arose in the decision of the Court of Criminal Appeal in Attorney General -v- Stuart (1994) 34 NSWLR 667. Hunt CJ at CL (Smart J. generally agreeing; Studdert J agreeing) said at p. 681: "The concept of legitimate forensic purpose in not confined to claims of public interest immunity. It arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party is unable to show that it is at least 'on the cards' that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so: R -v- Saleam . He is not entitled to conduct a fishing expedition. The need to show a legitimate forensic purpose arises even if the claim of public interest immunity fails".

[45] Accordingly, there is no reason to assume that this as a general principle would not apply to any consideration of any ground of privilege claimed in respect of subpoenaed documents.

Client Legal Privilege - Legal Professional Privilege

[46] In proceedings in a Federal Jurisdiction, New South Wales or the Australian Capital Territory the starting point on this issue is sections 117 - 126 of the Evidence Act, 1995. Those provisions of the Evidence Act substantially modified the common law in that by virtue of the Act the "sole purpose test" as laid down by the High Court in Grant -v- Downs (1976) 135 CLR 674 was replaced by the "dominant purpose test". See especially sections 118 and 119 of the Evidence Act 1995. The majority (Gleeson CJ, Gaudron & Gummow JJ) in Esso Australia Resources -v- Commissioner of Taxation observed that the High Court in Grant -v- Downs did not consider the "dominant purpose test" as a possible alternative to the "sole purpose test". See especially the judgment of the majority at p. 67, paragraph 42. The issue in Esso Australia Resources -v- Commissioner of Taxation related principally to discovery and inspection. However, it is submitted that there is not reason why the principles enunciated by the High Court should not also apply to the issue of access to subpoenaed documents.

[47] Dealing the common law of legal professional privilege, the majority in Esso Australia Reources -v- Commissioner of Taxation said at p 64 (paragraph 35): "Legal professional privilege (or client legal privilege) protects the confidentiality of certain communications made in connection with giving or obtaining legal advice or the provisions of legal services, including representation in proceedings in a court. In the ordinary course of events, citizens engage in many confidential communications with professional advisers, which are not protected from compulsory disclosure…The privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure to their lawyers.

[48] Their Honours went on to say (p. 65 - para 35): "As Deane J. expressed in Baker -v- Campbell (1983) 153 CLR 52, a person should be entitled to seek and obtain legal advice in the conduct of his or her affairs, and legal assistance in and for the purpose of the conduct of actual or anticipated litigation, without the apprehension of being prejudiced by subsequent disclosure of the communication. The obvious tension between this policy and the desirability, in the interests of justice, of obtaining the fullest possible access to the facts relevant to the issues in a case lies at the heart of the problem of the scope of privilege. Where the privilege applies, it inhibits or prevents access to potentially relevant information. The party denied access might be an opposing litigant, a prosecutor, an accused in a criminal trial, or an investigating authority. For the law, in the interests of the administration of justice, to deny access to relevant information, involves the balancing of competing considerations".

[49] Note, however, that sections 118 and 119 of the Evidence Act, 1995 use the expression "Evidence is not to be adduced…". This is significant when the "three stages" as set out by the Court of Appeal in Waind -v- Hill is considered.

[50] Earlier in their decision in Esso the majority said (pp. 60-61 - para 21): "It is in the area identified in this passage that the appellant's second argument lies. Its origin is to be found in the judgment of McLelland CJ in Eq in Testra Corporation -v- Australia Media Holdings [No. 1] (1997) 41 NSWLR 277. That was a case concerning a claim to inspect documents produced on subpoena. The documents were said to be the subject of legal professional privilege, and a question arose as to the test to be applied to determine that contention. McLelland CJ in Eq noted the difference between the statutory test and the common law test. He also said that, as a matter of statutory construction, ss. 118 and 119 of the Evidence Act did not apply to ancillary process, and that no question of adducing evidence arose. However, his Honour regarded it an anomalous and 'verging on the absurd' (p. 279) that different tests should apply to a claim for privilege made in ancillary process and a claim made at the stage of adducing evidence. He pointed out that historically, the doctrine of legal professional privilege was established in the context of testimonial compulsion, although, now, in Australia, it operated in a wider context. He said (p. 279): 'In this sense the principles of legal professional privilege applicable to testimony at a trial provide the paradigm, and the extension of the same principles to ancillary processes was derivative in nature. Accordingly, any change to the paradigm should rationally be reflected in the derivatives'.

[51] Earlier in his decision in Telstra -v- Australis Media [No 1] McLelland CJ in Eq said at p. 278-9: "The Evidence Act principles are expressed in the Act to apply to the adducing of evidence, and this expression does not in its ordinary and natural meaning extend to ancillary process. I do not consider that as a matter of construction of the Act the provisions of Div 1 of Pt 3.10 can be held to apply directly to the ancillary processes. If, pursuant to s. 3(3) of the Act and s. 34 of the Interpretation Act, 1987, consideration is given to the ALRC Report No. 38, Evidence, it seems clear that the expression 'adducing of evidence' in the corresponding clauses of the draft Bill was not intended to include ancillary processes, because the Law Reform considered that its terms of reference limited it 'to considering the application of the privilege in the court room where evidence is sought to be given' and not, for example, to discovery".

[52] It is noted that the headnote in the Authorised Reports of the decision in Esso maintains that "ss 118 and 119 of the Evidence Act concerned the adducing of evidence and did not apply to a request for the making available of documents for inspection". However, the majority said at p.64 (para 32): "Discovery and inspection of documents may be onerous and oppressive, and unless kept within the bounds of necessity may add greatly to the expense and delay involved in litigation. The rule (of Court) confers a salutary discretionary power, but its purpose is not to enable the Court to subvert, or circumvent, the rules which determine the existence of privilege".

[53] Returning to the issue of the "dominant purpose test" the majority in Esso said at p. 72 (para 58): "The main objection to the (sole purpose) test is what was described in the Court of Appeal in New Zealand as its extraordinary narrowness. If it is to be taken literally, one other purpose in addition to the legal purpose, regardless of how relatively unimportant it may be, and even though, without the legal purpose, the document would never have come into existence, will defeat the privilege. This has led some judges to apply the Grant -v- Downs test in a manner which might suggest that it is not taken literally…If the only way to avoid the apparently extreme consequences of the sole purpose test is to say that it should not be taken literally, then it loses its virtue of clarity".

[54] Their Honours concluded (p. 73 - paragraph 61): "As a practical matter, the choice presently confronting this Court is between sole purpose and dominant purpose. The dominant purpose test should be preferred. It strikes a balance, it suffices to rule out claims of the kind considered in Grant -v- Downs and Waugh , and it brings the common law of Australia into conformity with other common law jurisdictions".

[55] See sections 126A to s. 126F of the Evidence Act. Again, note s. 126B(1) of the Act provides:

"The court may direct that evidence not be adduced in a proceeding…"

[56] Protected confidence is defined in s. 126A as: "a communication made by a person in confidence to another person (the confidant):

in the course of a relationship in which the confidant was acting in a professional capacity, and

when the confidant was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant. [57] The exclusion of evidence of such protected confidences is dealt with within s. 126B of the Evidence Act. Subsection 4 sets out a number of matters the Court must take into account. The section clearly does not limit the court only to those matters.

"The Court must state its reasons for giving or refusing to give a direction under this section".

[59] The relevant sections of the Evidence Act 1995 are ss. 126G to s. 126I inclusive. Section 126G provides that the expression "criminal proceeding" has the same meaning as those words in Division 2 Part 5 of the Criminal Procedure Act 1986. Section 295 of the Criminal Procedure Act 1986 defines a criminal proceeding as:

"(a) proceedings relating to the trial or sentencing of a person for an offence (whether or not a sexual assault offence), other than preliminary criminal proceedings, or

(b) proceedings relating to an order under Part 15A (Apprehended violence) of the Crimes Act 1900".

[60] Preliminary criminal proceedings are defined in s. 295 of the Criminal Procedure Act 1986 as:

(b) proceedings relating to bail (including proceedings during the trial or sentencing of a person), whether or not in relation to a sexual assault offence".

[61] Section 297 of the Criminal Procedure Act provides:

(1) A person cannot be required (whether by subpoena or any other procedure) to produce a document recording a protected confidence in, or in connection with, any preliminary criminal proceedings. (2) Evidence is not to be adduced in any preliminary criminal proceedings if it would disclose: (a) A protected confidence, or (b) The contents of a document recording a protected confidence.

[62] An issue has arisen, at least in one matter in which the author was personally involved where a hospital in the Sydney Metropolitan Area voluntarily (and by mistake) produced to the Local Court records held by that hospital of counselling and treatment the complainant had received in respect of an allegation of sexual assault. The writer took the view (although it was not tested) that the prohibition contained within subsection (1) of s. 297 of the Criminal Procedure Act was directed towards the compulsory production of the document. There is a distinct difference between the words in subsections (1) and (2) in that subsection (1) provides that a person "cannot be required to produce", whereas subsection (2) absolutely prohibits the disclosure of evidence that would disclose the matters enumerated.

[63] At the risk of moving slightly (or even considerably) away from the subject of subpoenas, there is the matter of statutory interpretation. James J. (with whom Spigelman CJ and Abadee & Barr JJ agreed) in his judgment in R -v- Young (1999) 46 NSWLR 681 at 734 cited from the decision of HcHugh JA (as he then was) in Kingston -v- Keprose (1987) 11 NSWLR 404 AT 421-2 in that: "Once the object or purpose of the legislation is delineated, the duty of the Court is to give effect to it in so far as, by addition or omission or clarification, the relevant provision is capable of achieving that purpose or object. Where the Court can see the purpose of a provision from an examination of its terms, little difficulty should be met in giving effect to that purpose".

[64] Returning to the matter of sexual assault communication privilege, James J. in R -v- Young at p. 730-1 (paragraphs 269-270) said: "The principal submissions made on behalf of the appellant were if the words used by the legislature in Div 1B are interpreted to their natural, ordinary meaning, then they should be interpreted as meaning that sexual assault communications privilege under DIV 1B is limited to the adducing of evidence at a hearing and does not apply to the production of documents on subpoena.

[65] His Honour said resolving that issue at p. 731 (paragraph 279) said: "The first submission made on behalf of the appellant should be accepted. Indeed, it was not suggested by counsel for the health service or counsel for the Attorney General that, if the words in DIV 1B were literally interpreted according to their ordinary, natural meaning, they would apply to the production of documents".

[66] At paragraph 281 at p. 732 his Honour went on to say: "It must also be accepted that there is a distinction between the adducing of evidence and the discovery of documents or the production of documents on subpoena. Documents may have to be discovered or produced on subpoena, even though they would not be admissible in evidence. Furthermore, such documents, even if not admissible in evidence, may assist a party to whom the documents are discovered or produced, for example by leading to a train of inquiry".

[67] Please note, however, that James J. was relying as authority the decision of the Full Federal Court in Esso Australia Resources -v- Commissioner of Taxation, which subsequently went on appeal to the High Court. Extracts from the High Court's decision in that matter are set out under the heading Client Legal Privilege - Legal Professional Privilege.

[68] Beazley JA in R -v- Young generally agreed with James J. However, she also would have found (her Honour was in the minority on this issue) that in that case then under consideration,

"…several aspects of the public interest were identified as being sufficient to attract the doctrine of public interest immunity - protecting victims and promoting victim's recovery from sexual assault; facilitating the effective operation of sexual assault services; and encouraging complainants to report the crime of sexual assault to police". - page 721, paragraph 215.

[69] As observed by the learned authors of the Butterworth's Practice at paragraph 2-s-297.1 (p. 9443), "the statute (Criminal Procedure Act) was amended to extend sexual assault communications privilege to pre-trial procedures including subpoenas".

[70] It may be difficult for some to perceive an instance where this claim of privilege could be raised in relation to subpoenaed documents. However, anything is possible! This issue has arisen at least once in the author's experience in circumstances where a particular procedure of the Church of Jesus Christ of Latter Day Saints (Mormons) was recorded in the form of official minutes of the meeting (if that be the correct expression).

[71] The relevant section of the Evidence Act 1995 is s. 127. Note that the expression religious confession is defined as, "a confession made by a person to a member of the clergy in the member's professional capacity according to the ritual of the church or religious denomination concerned".

[72] Section 128 of the Evidence Act is the relevant section. Note in particular that s. 128(1) provides:

(1) "This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness:

(a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty".

[73] There could be little doubt that because of s. 128(1)(b) self incrimination privilege would extend to revenue or taxation matters where the person concerned could be liable to a civil penalty.

[74] Self Incrimination privilege is a well-established notion. Toohey, Gaudrron, HcHugh & Gummow JJ in Reid -v- Howard (1995) 184 CLR 12 citing with approval what was said by Mason CJ in Hamilton -v- Oades (1989) 166 CLR 486 at 495 said: "The privilege against self-incrimination may be abridged by statute or waived but, that aside, it has generally been accepted that it is without 'real exception'."

[75] Earlier in Reid -v- Howard Deane J. said at p. 5: "The privilege against self-incrimination is deeply ingrained in the common law. It reflects 'a cardinal principle' which lies at the heart of the administration of the criminal law in this country. It can be, and has increasingly been, overridden or modified by the legislature. It can be waived by the person entitled to claim it. Otherwise, it is unqualified. In particular, it should not be modified by judicially devised exceptions or qualifications. Unless it appears that the assertion of potential incrimination is unsustainable, a claim to the benefit of the privilege cannot, in the absence of statutory warrant, properly be disregarded or overridden by the courts."

[76] Meagher JA (who was in dissent on the ultimate issue to be decided - to do with Mareva Orders and an order for disclosure in relation thereto) said in Vasil -v- National Australia Bank (1999) 46 NSWLR 207 at p. 209 (paragraphs 2 & 3): "The respondent's submission was that all relevant authorities made it clear, that in the case of a subpoena duces tecum and in the case of a subpoena ad testificandum, in the case of an order to give discovery or an order granting leave to interrogate, the objection that the answers or the documents might incriminate the person required to answer questions or produce documents should be taken at the time when the information was required to be taken or the documents produced, not earlier. The authorities on this point are quite clear, and are in the respondent's favour".

[77] Stein JA in the same decision said at p. 209 (paragraph 8): "I accept, as Meagher JA makes plain in his judgment, that in the case of a subpoena, discovery or interrogatories, if the person concerned wishes to claim the privilege, he or she does not at the time when the documents are produced or the interrogatories are required to be answered. In this way the privilege is reserved".

[78] Clearly, any claim for privilege should be made at the time the documents are produced to the court.

Exclusion of evidence of matters of state (Public Interest Immunity)

[79] Section 130(1) of the Evidence Act 1995 provides: "If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document, the court may direct that the information or document not be adduced as evidence".

[80] Again, note that the section specifies "…not be adduced as evidence".

[81] Beazley JA in her judgment in R -v- Young sets out an excellent summary of the basic principles in that (see page 704 et seq; paragraph 125 et seq): "The principle of public interest immunity and the rules which govern its application may, in the first instance, be stated as follows. The doctrine protects from compulsory disclosure in court proceeds (and other non-curial proceedings) evidence (usually is, although not confined to, documentary form) which is or may be relevant, if its disclosure would be prejudicial or injurious to the public interest: see Sankey -v- Whitlam (1978) 142 CLR 1 at 38, per Gibbs J; Conway -v- Rimmer [1968] AC 910; Suzanne McNicol, Law of Privilege , Law Book Co., Sydney at p. 375. The principle is an exception to the primary tenet of our legal system that relevant evidence is admissible and should not be withheld: see D -v- National Society for the Prevention of Cruelty to Children [1978] AC 171 at 223 per Lord Hailsham. Three specific rules have developed governing the application of the principle. First, the immunity cannot be waived, secondly, it is not dependent on a claim being made by the parties, thirdly, secondary evidence cannot be given of evidence the subject of the claim. The rules themselves are the defining difference between immunity and privilege: See Generally, McNicol chapter 1. Claims for immunity are traditionally categorised either as 'class interest' claims - that is documents of a class which should not be produced - or as attracting 'contents interest' - that is, a particular document the contents of which should not be produced."

[82] In determining whether a claim for public interest immunity or (as it is referred to within s. 130 of the Evidence Act) exclusion of mattes of state, the Court is required to undertake a balancing exercise. Again, see the judgment of Beazley JA in R -v- Young at pp. 704-5 - paragraph 128:

"It is now well established that where a claim for public interest immunity is made the court is required to balance two competing aspects of the public interest: whether the public interest would be harmed by the production of the evidence as against whether the administration of justice would be frustrated or impaired if the evidence was withheld: see Conway -v- Rimmer; Rogers -v- Home Secretary [1973] AC 388; Norwich Pharmacal Co -v- Customs and Excise Commissioners [1974] AC 133 at 140 per Lord Denning MR; Sankey -v- Whitlam (at p. 38-9); Alister -v- The Queen (1984) 154 CLR 404. In this sense the immunity is not absolute (except perhaps in civil proceedings in respect of matters subject to current or recent Cabinet discussion: see Commonwealth -v- Northern Land Council ".

[83] Logically, the Court will need to examine the documents involved in order to make a proper determination as to whether or not the claim for privilege is made good. Returning to the judgment of Beazley JA in R -v- Young at p. 705: "The Court is required to examine the documents itself to resolve the competing aspects of the public interest: Conway -v- Rimmer; Alister -v- The Queen

[84] However, her Honour went on to say, (p. 705 - paragraph 129): "However, before the court will engage in the balancing exercise it must be satisfied that there is a legitimate forensic purpose in having access to the evidence: Alister -v- The Queen; R -v- Saleam. There is some difference of views in Alister as to what constitutes a legitimate forensic purpose, although the members of the Court were agreed that it was something more than a mere fishing expedition".

[85] Matters relating to police informants should be considered separately to a claim for public interest immunity. As Beazley JA said in R -v- Young at p. 707: "The category of police informers has long been recognised as a class to which the protection of public interest immunity will be afforded. The claim can be traced back at least to the Trial of Thomas Hardy for High Treason (1794) 24 State Tr 199."

[86] Earlier in her judgment Beazley JA said (p. 705, paragraph 132): "The rationale underlying the immunity relating to police informers is quite different and, as with other claims for immunity, is directly related to the public interest invoked. The rationale in respect of police informers is that unless the names of informers are protected, sources of information would dry up, thus hindering the police in the detection and prevention of crime: D -v- National Society for the Prevention of Cruelty to Children; Sankey -v- Whitlam; Cain -v- Glass [No. 2] (1985) 3 NSWLR 230 ; Attorney General -v- Stuart. It is important to recognise that this rationale remains within the overarching public interest, namely 'the maintenance of social peace and order': Attorney General -v- Stuart (at p. 675 per Hunt CJ at CL).

[87] Hunt CJ at CL (Smart J. generally agreeing; Studdert J. agreeing) in Attorney General -v- Stuart (1994) 34 NSWLR 667 at 679 paragraph G said: "Although the rationale for the immunity is relation to the identity of informers is expressed as being not so much the danger to informers as the fear that police sources would dry up, the obvious reason why the sources are likely to dry up is the informers' fear of violence from those upon whom they had informed if their identify were to be disclosed". [88] The headnote to the decision of Attorney General -v- Stuart maintains that the case is authority for the proposition that "where public interest immunity is claimed to prevent the production of documents on the ground that the documents contained in information relating to continuing police investigations, it is not proper to reject that claim because of the absence of any detail about the nature of those investigations where the production of such details would necessarily lead to the disclosure of some of the very information for which the immunity is claimed".

[89] In this regard, Hunt CJ at CL said at p. 681: "But, in any event, the Commissioner could not properly have been required to produce the details the absence of which led to the magistrate's criticism where such a production would necessarily have led to the disclosure of some of the very information for which immunity was claimed, as it would have here."

[90] His Honour the Chief Judge at Common Law went on to make a number of observations or comments about the absence of information in that (p. 681): "The necessary effect of the absence of such information before the magistrate may perhaps be deplored, in that it denies the party against whom the claim of immunity is made the fullest opportunity of debating the issue…The remedy, however, if there were a genuine concern as to the validity of the claim that the policy investigations are continuing, was to obtain further information that did not reveal that information. The magistrate did not seek such evidence, and he was in error in rejecting the claim on that basis".

[91] As a matter of practice, bodies such as the Police Force will have available a copy of documents with subject material deleted or blacked out for the purposes of access should the claim for privilege be upheld.

[92] See section 131 of the Evidence Act, 1995, noting of course, that the expression "Evidence is not to be adduced…" is used within that section.

[93] The public policy considerations of the protection by privilege of "without prejudice" negotiations was discussed by the Full Federal Court in Hoefler -v- Tomlinson (1995) 133 ALR 625. Rolfe J. referred to that decision in his judgment in Macplan Logistics Systems -v- Baxter Healthcare (1996) 39 NSWLR 324 in that he said at p. 328 Paragraph F: "The decision of the Court, which comprised Spender, Sackville and Keifel JJ was given by Spender J, who referred to the first provisions of s. 131(1) of the Evidence Act 1995 (at 626) and then to the rationale of the rule excluding evidence of settlement negotiations as being the public policy in 'in encouraging out of Court settlements and the principle of promoting the individual's right to enter into such negotiations openly and without interference."

[94] His Honour went on to say at p. 329 paragraph B: "In my opinion all these authorities reinforce the conclusion that in the absence of express provision permitted the tender of 'without prejudice' communications they cannot be used, save in the express circumstances for which the rules provide. As I have sought to explain the rules do not permit the use of 'without prejudice' material in the form of an offer of compromise and to do so would be contrary not only to important public policy considerations but also the provisions of s. 131 of the Evidence Act which give statutory effect to those public policy considerations".

[95] Part 42 rules 13-17 inclusive of the Uniform Civil Procedure Rules is the relevant part of those rules relating to costs and Offers of Compromise.

[96] The effect of s. 131 of the Evidence Act 1995 is that it overrules the common law. Santow J. in Bruinsma -v- Menczer (1995) 40 NSWLR 716 said at pp. 719-720: "Mark Aronson and Jill Hunter Litigation, Evidence and Procedure 5th Ed (1995) Butterworths at 480 say cautiously 'paragraph (h) (of s. 131) might overrule the common law. In my judgment that is precisely what s. 131 does do by introducing a different regime dealing with adducing evidence concerning offers of settlement at trial. I should add that the result in this case is: "…perfectly consistent with the scheme of the Rules, one evident purpose of which is to require parties to the litigation to give prompt consideration either to settling, or to talking the various risks of not settling which now include the costs risks created by the Rules'; Ettingshausen -v- Australian Consolidated Press Ltd (1995) 38 NSWLR 404 at 409 per Gleeson CJ and Priestly JA".

[97] See generally Part 42 of the Uniform Civil Procedure Rules relating to costs. Note also that Part 20 Rules 25 - 32 inclusive of those Uniform Rules deal with Offers of Compromise.

[98] Section 132 imposes a positive obligation on the Court in that:

s. 132 - If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury in the absence of the jury) that the witness or party is aware of the effect of that provision.

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