Certain matters of principle
6In the CBA judgment, the Court noted at [10]:
"I think the essential notion is that there is a reasonable chance that the material sought will assist the defence. If it is reasonable to infer that the material sought exists and that it is relevant to an issue, though its content is unknown, it will almost invariably be logically the case (as it seems to me) that such a chance exists, even though it might be thought to be unlikely. Seeking that material therefore seems to me to be a legitimate forensic purpose..." (emphasis added).
7In respect to documents called for by a subpoena, in the CBA Judgment at [25], I endorsed the following formulations of the test as being:
(1)documents which have the capacity to "throw light on the issues in the main case": Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103;
(2)documents which could "reasonably be expected to throw some light on the issues in the proceedings": Re Marnotta and Secretary, Dept of Health and Ageing [2004] AATA 800 at [42]; and
(3)documents may reasonably be regarded as "on the cards" if the documents will materially assist the resolution of the issues in the proceedings: Alister v R (1984) 154 CLR 404.
8Brereton J in Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 had occasion to revisit the matter. His Honour identified the test for relevance in the context of subpoenas or notices to produce as follows (at [23]-[25]):
"It is necessary, then, to appreciate what is the test of "relevance" in the context of a subpoena. In many of the cases, it had been described as " apparent relevance", in the sense that the documents, production of which is sought, must bear some apparent relevance to an issue in the proceedings.
In Waind v Hill , Moffitt P described the concept in these terms:
Production of a document on subpoena by a stranger is only required if the document is sufficiently relevant to the action in the sense that it is likely to add in the end, in some way or other, to the relevant evidence in the case.
In White v Tulloch (1995) 127 FLR 105; (1995) 19 Fam LR 696; (1995) FLC 92-640, the Full Court of the Family Court referred to the test in terms of documents having "a sufficient apparent connection to justify their production or inspection".
But perhaps the most instructive description is that of Beaumont J in Arnotts , in which his Honour said that the test of adjectival relevance was satisfied if the material had apparent relevance and was established if the documentation called for "could possibly throw light on the issues in the main case". In a slightly different but related context, the test has been put in terms that a subpoena has a legitimate forensic purpose if it appears to be "on the cards" that the documents sought will materially assist the defence in a criminal proceeding [ Alister v R (1984) 154 CLR 404 at 414 (Gibbs CJ), R v Saleam (1989) 16 NSWLR 14 at 18].
Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could "possibly throw light" on the issues in the substantive proceedings, or that it appears to be "on the cards" that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles, which govern the claims for relief in the substantive proceedings.
Rolfe J, in his Honour's judgment of 31 July 1998, dealt with a number of subpoenas which had been issued and dealt with a number of notices of motion seeking to set aside those subpoenas. The judgment included a reasonably detailed examination of the authorities and of the principles involved. His Honour enunciated, in a fashion which I would not depart from, the basic parameters which are to inform the Court in the exercise of its discretion where an application to set aside a subpoena is pursued.
On the one hand, there is clearly to be recognised, the obvious danger of permitting a party by use of the subpoena procedure, to investigate issues of credit having no conceivable relevance to issues pleaded, in the sense that to permit subpoenas of that type to be called would open up matters falling outside the legitimate field of enquiry raised by the issues in contest.
On the other hand, it seems to me quite clear that inspection should be granted, so far as is necessary, in the proper conduct of the litigation, where the Court forms the view that the material falls within the legitimate field of enquiry raised by the issues in contest and is reasonably likely to add in the end in some way or other to the relevant evidence in the case. The exercise, recognised by Rolfe J, involves the need to balance these alternative considerations.
The determination of the Court in the balancing exercise and in particular the proper approach to the question of relevance, requires the Court, as Rolfe J indicated, to bear in mind the entitlement of the parties to build up what his Honour referred to as 'an evidentiary mosaic'.
As his Honour said, that exercise generally cannot be done, particularly in complicated commercial litigation, by the tender of one piece of evidence or the assertion that only limited material is relevant to the issues involved. As his Honour said, 'particularly is that so when one must have regard to the desirability of as full a cross-examination as possible, assisted by the availability of documents which will aid that'. Hence, as his Honour stated, both as to issues and as to the issue of credit, the Court should not be astute to find irrelevance at an early stage in the proceedings."
9It is not the case that a third party cannot be compelled to produce a document "unless the document is itself admissible in evidence upon proof by a witness other than the person requested to make it available (see Waind v Hill (1978) 1 NSWLR 372 at 380)." To the contrary, there is no requirement that the documents sought should be intended to be tendered in evidence, nor even that they be admissible: cf. Waind v Hill at 381.
10As such there is no need to identify the document with "sufficient specificity to allow the Court to make a decision that it is itself admissible". This passage was expressly rejected by Moffitt P (with whom Hutley and Glass JJA agreed) in Waind v Hill at 381.