Historical review of the authorities
66It is not contested that the same principles apply, in both civil and criminal matters, to setting aside a NTP (to a party), as to setting aside a subpoena (to a stranger): R v Saleam ("Saleam") [1999] NSWCCA 86, at [11]; Bailey v Beagle Management Pty Ltd (2001) FCA 50; (2001) 105 FCR 136.
67In Commissioner for Railways v Small ("Small") (1938) 38 SR (NSW) 564, Jordan CJ stated the basic principle regarding abuse of process (at 575) in these terms:
"... a party is no more entitled to use a subpoena ... than he is a summons for interrogatories, for the purposes of ' fishing ', i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all ..." (emphasis added)
68In Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd ("Fairfax") (1952) 72 WN (NSW) 250, it was said (at 254) that a party is not to be allowed to go on "... a 'fishing expedition', in the sense ... that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not ".
69In Waind v Hill and National Employers' Mutual General Insurance Association Ltd ("Waind") [1978] 1 NSWLR 376, the Court of Appeal, per Moffitt P, said (at 382), after referring to Small :
... It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists , or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the [impermissible] purpose of 'discovery' ...(emphasis added)
70In Kelly v Raymor (Illawarra) Pty Ltd ("Kelly") [1981] 1 NSWLR 720, a case involving a challenge to the validity of a resolution adopted by a board of directors of a company, McLelland J said (at 721-2):
... the validity of such a resolution can be legitimately challenged on the basis of mala fides or improper motives on the part of individual directors without whose participation the resolution would not have been adopted.
71Alister concerned a subpoena issued to ASIO regarding an alleged investigation of the Ananda Marga by one Seary. The defence alleged that Seary's evidence was fabricated. The Attorney General of the Commonwealth argued that even to disclose whether or not the subpoena'd documents existed would prejudice national security. The trial judge set aside the subpoena. On appeal to the High Court, Gibbs CJ said (at 414-6):
Although 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. 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 could 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.
...
The defence challenged the Crown case 'as a fabrication and a frame-up', and if Seary had made a report which showed that he had fabricated his evidence at the trial it would be dangerous to allow the conviction to stand. In all the circumstances of the present case the interest of the applicants to obtain any report made by one of the principal Crown witnesses on his investigation into the crimes charged is not outweighed by the public interest that would ordinarily require investigations by ASIO to be kept secret. Unlikely as it may be that any report would assist the applicants, I consider that we could not safely refrain from inspecting any report that Seary has made on the activities of the applicants. The subpoena in my opinion was too wide - I can see no reason to inspect all documents that may relate to any investigations made by Seary into Ananda Marga. We should in my opinion inspect all documents that relate to any investigation by Seary into the alleged crimes of which the applicants were convicted or into the activities of the applicants.
72According to Ward J (in McLaughlin at [31]), Gibbs CJ considered that a less stringent test might be applied in criminal proceedings than civil. However, it has often been stated in criminal cases that an accused must establish that it is " on the cards " that the material sought will assist. The NSW Court of Criminal Appeal (per Simpson J) stated, in Saleam (1989) (at [11]):
The principles governing applications [for an order that documents 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 (2) establish that it is 'on the cards' that the documents will materially assist his case.
See also Commonwealth v Northern Land Council (1991) 30 FCR 1 (at 37), Carroll v Attorney-General (NSW) ("Carroll") (1993) 70 A Crim R 162, and Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667.
73Arnotts was decided in 1989. (See [56]-[58] above).
74In Carroll, Mahoney AP said (at 181):
... the court must, in general, be satisfied that the documents are relevant to an issue for decision by the court in the litigation. It is not open to a party, as on a 'fishing expedition', to subpoena documents merely in order to determine whether they may be relevant and may be of assistance to his case in the proceeding.
75The cases refer to three stages in the process: (1) production of documents to the court; (2) the court's decision as to their inspection by other parties; and (3) the question of their admission into evidence.
76Relevance or irrelevance is a key issue at the third stage, but was, in the past, not at the first stage, until Arnotts: see Portal at [19]. Where relevance is raised at the first stage, the issuing party has the onus of showing it. In the case of a subpoena, a non-party cannot always be expected to know what the issues in the case are so as to be able to demonstrate irrelevance: see Portal at [29], citing Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38.
77Adams J in Roads & Traffic Authority of NSW v Conolly & Anor [2003] NSWSC 327; (2003) 57 NSWLR 310 appeared to reduce the test to one of " mere relevance ". His Honour said (at [12]):
.... it seems to me that the relevant "range" is therefore between the barely probable and highly probable. With respect, it seems to me that this area of the law is bedevilled with metaphors. 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, providing of course that the factual issues and the character of the material sought are precisely identified.
78That " reframing " of the test has since been disavowed by Beazley JA in Chidgey , and by Ward J in McLaughlin .
79Doyle v Australian Securities and Investments Commission (ASIC) ("Doyle") [2005] HCA 78; (2005) 227 CLR 18 was a case involving alleged improper use of position. Even though subjective intention or purpose was not a necessary ingredient in determining impropriety, and even though it did not concern a NTP, the case was put to Ward J in McLaughlin , which, a little like Alister , concerned a request for documents the existence of which was doubtful. Her Honour found them to be adequately described. (I say, respectfully, that Her Honour's survey and application of authority has proven most helpful to me in the present case).
80Doyle was put to Her Honour in support of a submission that, " when looking at whether or not there had been an impermissible collateral purpose which was causative of the decision to proceed with the resolution " challenged in the case before her, " it is permissible to look at evidence of intention " (see [54]). The counter-submission put to Her Honour was that the only relevant question was what those supporting the impugned resolution had objectively sought to achieve by them. Subjective motives of one player cannot be relevant in impugning the collective actions of the company or board ([56]-[60]). Ward J referred to Kelly (quoted above at [70]), and held (at [64]) that:
Accordingly, while there is no personal action against Mr Garratt in the present proceedings asserting a breach of duty by reason of his acting for an improper purpose, evidence shedding light on the issue whether he acted for an improper purpose may well be relevant to the question whether the resolution of the board itself was so motivated ... For present purposes I am not convinced that documents which may assist in ascertaining Mr Garratt's subjective motivation lack the requisite degree of relevance.
81Portal was also decided in 2005. It was a decision of Brereton J, who has also written several other important judgments since then on NsTP and subpoenas, including Norris v Kandiah ("Norris") [2007] NSWSC 1296.
82In A v Z (' AvZ ') [2007] NSWSC 899; (2001) 212 FLR 255, His Honour had explained the differences between the process of discovery and that of subpoena. His Honour said (quoted in Norris , at [3]) that:
...the touchstone of discovery is the concept of relevance to a fact in issue in the proceedings, whereas subpoenas for production are not necessarily limited to documents relevant to a fact in issue, but may extend to documents relevant to credit.
83In the context of UCPR 21.10, which had been considered by Young CJ Eq in Penrith Rugby League Club Ltd v Brown [2004] NSWSC 1182, Brereton J said (in Norris , at [4]):
The limitations with the requirement that there be a "specific document" and that it be "clearly identified" were explained by [Young J]... the rule was not intended to subject a recipient to any kind of general discovery obligation. The words "clearly identified" mean that there must be something more specific than a matter which can be ascertained by the ordinary processes of construction and employing extrinsic evidence; it must be pointed out in a manner distinct and free from confusion. The requirement for specificity connotes something that is identified, and not merely identifiable. His Honour upheld a submission that it would be insufficient to identify a box containing a number of unspecified documents, or a lever arch folder containing a number of unspecified documents; identification of the specific documents was required.
84Brereton J continued (in [5]):
In my view, this notice does not clearly identify specific documents, but calls for classes of documents. It was not the intent of this rule to enable notices to be given requiring production of classes of identifiable documents, as distinct from specific identified documents. Accordingly, in my view, this notice is not a valid exercise of the power to serve a notice to produce under r 21.10, and I would set it aside on that basis.
85Chidgey was decided in 2008. It concerned pursuit of documents to assist a defendant in arguing that some evidence against him had been " improperly or illegally obtained ". The magistrate found an alternative " legitimate forensic purp ose". In the Court of Criminal Appeal, Beazley JA applied the principles from Small, Saleam, and Alister, in a thorough review of authority (at [58]-[80]), and concluded (at [84]-[87] - her emphasis):
84 Notwithstanding that the subpoena sought documents that were identifiable, I am of the opinion that the legitimate forensic purpose identified by the Magistrate amounts to no more than a proposition that the respondent was entitled to engage in a "fishing expedition" to ascertain whether there had been compliance with s 5(2A). That is apparent from the terms in which the Magistrate identified the forensic purpose. There was no material before the Magistrate to indicate that there had been, or might have been, non-compliance with s 5(2A).
85 This is acknowledged in his Honour's comment that there should be access to the documents to enable the respondent to check whether there had been compliance with s 5(2A). In other words, the Magistrate identified the legitimate forensic purpose in terms that meant the respondent needed to have access to the documents "to discover whether he has a case at all": see The Commissioner for Railways v Small at 575. As Jordan CJ stated in that case, a party is not entitled to use a subpoena for that purpose.
86 This was not a case like, or analogous to, the example given in Alister where an important witness had given a pre trial report so that it could be said that it was "on the cards" that the document "would materially assist" the respondent by permitting cross-examination of the witness based on the earlier report. Nor was it a case like that which Hunt J had dealt with in Saleam, where there was some evidence that there was a problem with the evidence given at trial and the material subpoenaed may have revealed whether that was the case. Here, there was no suggestion that the police witnesses had made earlier statements that should be available for the purposes of cross-examination. Nor was there any suggestion whatsoever that there was any failure to follow correct procedures, or that any wrongdoing had been engaged in. In short, there was nothing at all to suggest that it was "on the cards" that the subpoenaed material would "materially assist the respondent's case".
87 It follows, in my opinion, that the Magistrate erred in law in allowing access to the material referred to in para 3 of the Schedule to the subpoena.
86ICAP , both at first instance and in the Court of Appeal (See [93] below), were decided in 2009.
87Brereton J delivered another relevant judgment in 2009, prior to Ward J's decision in McLaughlin , namely Liristis v Gadelrabb ("Liristis") [2009] NSWSC 441, a case in which the plaintiff sought specific performance of an alleged oral contract of sale. Questions of credit were involved, and the defendant issued a subpoena to the Commissioner of Police seeking the criminal records of both the plaintiff and his father, and the plaintiff argued abuse of process, and absence of a legitimate forensic purpose.
88His Honour observed (at [5] - emphasis mine):
I do not understand it ever to have been a proper objection to a subpoena that it seeks documents relating only to credit. Indeed, one of the fundamental distinctions between the processes of subpoenas for production and discovery is that subpoenas, unlike discovery, may be used to obtain documents relevant only to questions of credit, for the purpose of assisting cross-examination as to credit. It is true that in Fried v National Australia Bank (2000) 175 ALR 194, Weinberg J in the Federal Court of Australia said that it was inappropriate to permit a subpoena to stand which does little more than to trawl for documents that may be used to impugn the credit of a particular witness. I do not disagree with that observation, but that is not to say that it is inappropriate to permit a subpoena to stand that seeks documents that may be used to impugn the credit of a particular witness, as distinct from merely trawling for such documents. The concept of "trawling" in this context is the same as that of "fishing ". It is not fishing to seek documents when there are reasonable grounds to think that fish of the relevant type are in the pond or, as it has been expressed in other cases, that it is "on the cards" that relevant documents (even if they are relevant only to credit) will be elicited by the subpoena.
89There was evidence, and " ample reason to suppose ", that there may be criminal records relevant to dishonesty and/or perjury on the plaintiff's part, but no evidence " nor any reason to suppose ", that there might be any regarding his father. So, there was " a legitimate forensic purpose " for seeking the son's records, but the part of the subpoena referring to the father was " nothing more than a fishing expedition to see whether any such documents are in existence ". It could not " be sustained ", and was set aside.
90Whereas Brereton J hinted, in the passage quoted above (in [88]), that there may be a distinction drawn between " trawling " and " fishing ", depending upon context, and whereas Fairfax referred to dragging a pool (see [68] above), Ward J in McLaughlin (at [74]) noted submissions made to her, contrasting impermissible " trawling " and permissible " line fishing ", and concluded ([93]) that the subpoena in that matter was issued for a legitimate forensic purpose, and was not " an oppressive fishing (or trawling) expedition ".
91Four days prior to Liristis , Nicholas J had given his first instance decision in ICAP (see [60] above), in which His Honour reviewed the authorities, and stated the relevant test (at [30]) in the following terms (already quoted above, at [62]):
... it 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 .
92His Honour concluded (at [45]) that the subpoena was based on speculation, and its "true purpose " was " fishing ", to see if the documents " might permit a case to be made " that the plaintiffs loss of market share and revenue was caused by work done by departing employees for a rival company in breach of their contracts, not a " legitimate public purpose " ([47]-[48]).
93ICAP was appealed to the Court of Appeal - ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307. The judgment of that court was given by Tobias JA, who noted that the appellant contended that Nicholas J's formulation of the test (at [30], quoted above at [62]) was in error. Tobias JA responded (at [13]) by reference to use of the terms " on the cards ", " materially assist " and "likely " in leading cases like Alister and Waind , and by reference also to AvZ , Saleam, Chidgey , and some UK cases. Tobias JA's remarks indicate to this court the importance of carefully considering all the authorities for " shades of meaning ". He found no error in Nicholas J's reasoning or conclusion.
94A month before the ICAP appeal, Barrett J applied the principles from AvZ in Patonga Beach Holdings Pty Ltd v Lyons ("Patonga") [2009] NSWSC 869. His Honour set aside a NTP given by the defendants to the plaintiff under UCPR 21.10, and granted them leave to serve a varied NTP, under Rule 34.1. In so doing His Honour analysed and contrasted the two rules which, for completeness I set out:
21.10 Notice to produce for inspection by parties
(1) Party A may, by notice served on party B, require party B to produce for inspection by party A:
(a) any document or thing that is referred to in any originating process, pleading, affidavit or witness statement filed or served by party B, and
(b) any other specific document or thing that is clearly identified in the notice and is relevant to a fact in issue.
(2) A notice to produce may specify a time for production of all or any of the documents or things required to be produced.
34.1 Notice to produce to court
(1) A party may, by notice served on another party, require the other party to produce to the court, or to any examiner:
(a) at any hearing in the proceedings or before any such examiner, or
(a1) at any time fixed by the court for the return of subpoenas, or
(b) by leave of the court, at some other specified time,
any specified document or thing.
(2) The other party must comply with a notice to produce:
(a) by producing the notice or a copy of it, and the document or thing, to the court, or to the examiner authorised to take evidence in the proceeding as permitted by the court, at the date, time and place specified for production, or
(b) by delivering or sending the notice or a copy of it, and the document or thing, to the registrar at the address specified for the purpose in the notice, so that they are received not less than 2 clear days before the date specified in the notice for production.
95His Honour found (at [11]-[15]), after considering Norris (above at [81]-[84]), that a Rule 21.10 notice may relate only to a " document described by means of characteristics peculiar to itself, such as a letter of a given date written by X to Y ," and not to, for example, " all letters written by X to Y in 2008 ". On the other hand, a Rule 34.1 notice plays the same role in relation to a party as a subpoena plays in relation to a non-party, and so can call for " all letters...", but cannot be "discovery ". His Honour quoted Small - the documents required to be produced must be " specified with reasonable particularity ".
96It is to be recalled, in the context of Patonga , that the NTP challenged in the present matter was issued under Rule 34.1.
97Azar was decided in 2010. I quoted above (at [64]) what are, for me, the key sections of Craig J's judgment. His Honour noted (at [14]) that the NTP challenged before him was given pursuant to Rule 21.10.