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Is it really ‘on the cards’? Determining the validity of a subpoena in civil proceedings

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The case of Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 concerned an appeal to the NSW Court of Appeal from a decision of single judge refusing to set aside a subpoena for production on the ground that it lacked a legitimate forensic purpose.

This is an important decision which confirms that the courts are to apply a liberal ‘test’ or relatively low threshold as to whether a subpoena has a ‘legitimate forensic purpose’ and is accordingly valid.

Background

A subpoena for production was issued by Blacktown City Council (the Council) on the Secretary of the Department of Planning, Industry and Environment (the Secretary) in proceedings in the NSW Land and Environment Court. These proceedings related to the Council’s involvement in the compulsory acquisition of a third party’s land. At first instance, the Secretary applied to set the subpoena aside on the basis that it lacked any legitimate forensic purpose. This application was unsuccessful.

In its submissions, the Secretary relied upon the earlier decision of the NSW Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 (ICAP). The Secretary asserted that this decision established that the relevant test for determining whether a subpoena should be set aside is whether or not the documents sought would materially assist the case of the party which issued the subpoena.

The issue on appeal

The main issue on appeal was whether a legitimate forensic purpose for a subpoena may be established if it can be shown that it is likely that the documentation sought will (or on a reasonable basis beyond speculation is likely to) assist on an identified issue in the case, even if it cannot be shown that the documents subpoenaed will be likely to assist the case of the party issuing the subpoena.

Outcome

All three Judges on appeal held that the primary judge made no error in concluding that, in civil proceedings, it is not necessary in order to uphold the validity of a subpoena to prove that the documents sought will likely materially assist the party that issued the subpoena. To insist on such a requirement would place too high a hurdle on the ability of litigants to investigate the facts.

After reviewing the authorities in the area, President Bell (with whom McCallum JA agreed) concluded at [80]:

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.

Similarly, Brereton JA (with whom McCallum JA agreed) said at [89]:

In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case… Moreover, documents will add “in some way” to the relevant evidence in the case if they are capable of assisting in cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence.

So what?

In confirming a more liberal approach for determining whether a subpoena issued in civil proceedings is valid, the Court of Appeal’s decision is a significant and wide-reaching one. For as Brereton JA observed at [84], “the subpoena for production is crucial to the ability of a party to investigate the facts and assemble evidence to prove a case. That 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 the criminal context”.

By articulating a broad statement of principle in clear terms the Court of Appeal has introduced some much-needed clarity as to when a court may intervene to set aside a subpoena for production as an abuse of process.

A subpoena will be presumed to have been issued for a legitimate process if the documents sought are “apparently relevant”, or if there is a reasonable basis upon which they will materially assist on an identified issue in the proceedings, or if they may have some use in cross-examination, including testing the credit of witnesses.

This approach is important to bear in mind both for parties who are considering issuing subpoenas for production and for recipients who are considering whether to challenge subpoenas for production.

Contributors

Nathan Jones
Special Counsel
William Wade
Law Graduate

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