NSWCA clarifies when a subpoena to produce can be set aside

  • Newsletter Article
  • Published 17.08.2021

Craig v Toll Pty Limited t/as Toll Transport (NSWSC 2021)

Key Takeaways 

It is well established that a subpoena to produce must have a ‘legitimate forensic purpose’. 

The NSWCA has now confirmed that if a document sought under a subpoena is ‘apparently relevant’ to an issue in a proceeding, it will satisfy the ‘legitimate forensic purpose’ test, and must be produced. 

Importantly, the test does not require the party who issues the subpoena to be able to establish that the documents sought will ‘materially assist’ their case. 

Brief Facts 

Blacktown City Council (Council) issued a subpoena on the Department of Planning, Industry and Environment (DPIE). The DPIE subsequently sought to have the subpoena set aside on the grounds that the subpoena lacked a legitimate forensic purpose. At first instance, Her Honour Justice Pepper refused to set aside the subpoena and applied the decision of ICAP Australia Ply Ltd v BGC Partners (Australia) Pty Ltd (NSWCA 2009) (ICAP).

The DPIE appealed the decision on the basis that Pepper J had incorrectly applied the decision in ICAP by giving effect to a test of ‘apparent relevance’ to the facts in issue, rather than looking at whether the documents would be of ‘material assistance’ to Council’s case. 

Judgment on Appeal 

Their Honours Bell P, Brereton JA and McCallum JA found that Pepper J did not err in her interpretation of ICAP and was correct to refuse to set aside the subpoena. In doing so, it was confirmed that it was not necessary to establish that the documents requested would materially assist Council’s case in order to establish that the subpoena was issued for a legitimate forensic purpose. 

Their Honours unanimously agreed that it is undesirable to attempt to create a specific or strict test as to when a subpoena should be set aside. Instead their Honours provided guidance by stating that a legitimate forensic purpose can be established if a party can show that the documents sought are ‘apparently relevant’ to the issues in the proceedings. 

In this regard, Bell P noted there is a plain difference between the ‘apparent relevance’ of a document and the commonly used metaphor, ‘fishing’. The term ‘apparent’ acknowledges the possibility that the documents sought may not be ultimately relevant to the facts in issue, however, are apparently relevant at the time the subpoena is issued in light of the pleadings and evidence to hand. Where a document or category of documents sought under subpoena have some bearing on the issues in the case and may have evidentiary value, the subpoena cannot amount to ‘fishing’.  However, Bell P noted that it is not sufficient for an issuing party to claim, ‘I wish to see the documents to see if it may assist my case.’ 

Their Honours acknowledged that documents may be sought for a legitimate forensic purpose if they are capable of providing a basis for cross-examination, or if they go to the credit of a witness (even if the documents themselves may be inadmissible due to the rules of evidence). However, the absence of any apparent relevance or the presence of ‘mere relevance’ may not be sufficient to establish a legitimate forensic purpose, and would be a sufficient ground to set aside a subpoena or part of a subpoena. 

Implications

This decision confirms that a document sought in a subpoena to produce need only have ‘apparent relevance’ to the issues in dispute in order for the ‘legitimate forensic purpose test’ to be satisfied. Further, it makes clear that the party issuing the subpoena does not bear an onus of establishing that the documents sought could assist their case. 

Accordingly, when determining if a subpoena to produce can be set aside, close attention needs to be given to the exact issues in dispute in the proceedings. 

Adele Fletcher

Partner

P: 02 8257 5708

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