Subpoenas, Apparent Relevance and Eschewing A Rigid Legal Test

Subpoenas – A crucial tool

The subpoena for production is crucial to the ability of a party to investigate the facts and assemble evidence to prove a case.  This 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 criminal proceedings.

Because the use of subpoenas is so widespread in civil litigation, 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 the Court of Appeal.   Somewhat exceptionally, it did so recently in Dept of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145.  Given the rarity of an intermediate appellate court determining an issue of practice and procedure, the Court’s pronouncements (particularly in the judgment of President Bell) relating to the practical law of subpoenas provide very helpful guidance on generic questions of principle in this area.

Which test applies?

For some time, there has been an inconsistency of approach in respect of the correct “test” to apply in determining whether or not a subpoena should stand or be set aside.  Adding to the confusion is an abundance of different terminology that has been plucked from previous cases over several decades including both civil and criminal jurisdictions.  Some of it has seemingly taken on a life of its own.   For example, expressions such as “legitimate forensic purpose”, “apparent relevance”, “on the cards”, “sheds light on” and so.  Are the expressions the same, or if not, why not and how are they distinguished?  Those questions have frequently bedevilled practitioners and Courts alike in recent times.

Welcome clarification

The recent decision of the NSW Court of Appeal offers some very welcome clarity in respect of the correct legal approach to determine the legitimacy or otherwise of a subpoena to produce.

The President (at [60]) warned “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”.   Rather, the President provided 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 (e.g., see CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 392; [1997] HCA 33).

Apparent relevance:  The key

Instead of a rigid legal test being formulated, what should guide the determination of whether or not a subpoena stands or is set aside is if the documents sought to be produced 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.

Importantly, 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.  But of course, practically speaking, 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.

President Bell’s conclusion

President Bell concluded (at [80]):

“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”  (my emphasis).


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