Relevance
18 I do not see any reasonable basis for concluding that statements by Mr Willett recorded in the transcript might be relevant to any issue of fact that I must determine. The fact of the loan of $100,000 by SSDI to Mr Barkl, with monies provided by Mr Thomas, is not in dispute. Nor do the plaintiffs seek any relief in relation to that particular advance. Mr Willett's ability to persuade Mr Thomas to part with his monies so as to invest or lend those monies through SSDI, or directly with SMP, is relevant to the characterisation of the overall relationship between Mr Thomas, Mr Sullivan and Mr Willett. But the primary facts in relation to the particular $100,000 loan to Mr Barkl are not contentious. At the conclusion of the hearing, I will be able to draw inferences about that relationship from the primary facts. But I do not think that there is any reasonable likelihood that statements made by Mr Willett in his examination by the Commission in relation to any possible money laundering activities of Mr Barkl will assist me. Mr Willett's transcript does not satisfy the test of apparent relevance. I do not think that the subpoena can be supported on that basis.
Credit
19 Nor do I think that the subpoena can be supported on the credit basis. There have been a number of relatively recent judicial statements about the extent to which the credit basis can justify a subpoena. They reveal a difference in emphasis reflecting the varied factual circumstances in which the issue can arise, as well as the discretionary nature of the considerations to which a judge will have a reference on such an application. Three of the more important decisions in which such statements have been made are: Fried v National Australia Bank [2000] FCA 911 (Weinberg J); Liristis v Gadelrabb [2009] NSWSC 441 (Brereton J); Jack Brabham Engines Ltd v Beare [2010] FCA 35 (Jagot J). There is, I think, a common thread in each of these decisions which I will endeavour to explain:
(a) As a general principle, the production of documents intended to be used solely to impeach the credit of a witness may be a legitimate forensic purpose: Fried (supra) at [24]. It is not therefore an objection, by itself, that the subpoena seeks documents relating only to credit: Liristis (supra) at [5]; R v Saleam (1989) 16 NSWLR 14 at 19 (Hunt J). On the other hand, in order to support the subpoena, it is not sufficient, by itself, merely to say that the documents relate to the credit of a witness;
(b) In all cases, there must be some actual identifiable basis - reasonably precise and tolerably clear - that indicates what the legitimate forensic purpose really is. The forensic purpose requires realistic consideration of the potential strategic and evidentiary use of the documents in the context of the legal and factual issues that are required to be determined;