​Communty Law Alert

Issued: 21 July 2021

Legitimate forensic purpose for civil subpoenas

The Secretary of the Department of Planning, Industry and Environment was served with a subpoena issued at the request of Blacktown City Council, the respondent to Class 3 proceedings in the Land and Environment Court. The Secretary applied to have the subpoena set aside on the basis of lack of legitimate forensic purpose and was unsuccessful. The Land and Environment Court rejected that application on the basis that it was sufficient for the issuing party to demonstrate that the subpoena went to issues of general relevance to the matter. The Secretary appealed the decision. Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145.

Key points

  • To demonstrate a legitimate forensic purpose for the issue of a subpoena in civil proceedings, the Court of Appeal has determined that it was sufficient for the issuing party to demonstrate that the subpoena would materially assist on an identified issue in the proceedings and that it was not required to show that it was likely that the subpoenaed documents would materially assist the issuing party’s case.

  • The approach of the Court of Appeal is broader than that expressed in some earlier appellate authority and will impact upon the availability of a legitimate forensic purpose objection to subpoenas issued to government agencies.

Submissions

The Secretary appealed the Land and Environment Court’s decision to the Court of Appeal, having regard to legal principles set out in High Court and other appellate cases. In particular, since 2009, the NSW Court of Appeal’s decision in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 (‘ICAP’) had been relied on as the leading case on the test for legitimate forensic purpose in relation to civil subpoenas.

In ICAP, the Court stated that for a subpoena to have a legitimate forensic purpose it must be shown that it is likely the documents sought by the subpoena will materially assist the case of the party whose subpoena it is, or there is a reasonable basis beyond speculation that it is likely the documents will.

Decision

The Court of Appeal (Bell P, Brereton and McCallum JA) held that ICAP had not authoritatively determined the applicable test in civil proceedings. The Court held that the principles relied on by the Secretary in his submissions were derived from cases involving criminal proceedings and considerations of public interest immunity and were not applicable in civil proceedings. 

The Court held that a party who obtains a subpoena does not need to establish that documents sought in it would be likely to materially assist their case.

While the Court resisted defining a definitive test for setting aside a subpoena, it held that it will generally be sufficient and prima facie evidence of a legitimate forensic purpose if it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue in the proceedings (or if there is a reasonable basis beyond speculation that they will so assist). 

In addition to apparent relevance to a fact in issue in the proceedings, a legitimate forensic purpose can be shown if the documents sought could add to the relevant evidence by providing a legitimate basis for cross examination, or by relevance to credit, regardless of the ultimate admissibility of the documents. The key consideration identified was whether the subpoena involved an abuse of process, an absence of legitimate forensic purpose being one such abuse.

Bell P identified other instances in relation to which a subpoena could be set aside as an abuse of process, including:

  • the subpoena was not issued for the purpose of a pending trial, hearing or application

  • where to require the attendance of a witness would be oppressive

  • where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence (which need not be admissible) and the witness to whom the subpoena had been addressed was unable to give relevant evidence

  • where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party

  • where the subpoena has been used for the purpose of obtaining discovery against a third party

  • where to require a party to comply with a subpoena to produce documents would be oppressive

  • where the subpoena has been issued for a purpose which is impermissible, as, for example, ‘fishing’. a lack of apparent relevance.

Contacts

Anthea Tomlin, Special Counsel

anthea.tomlin@cso.nsw.gov.au

02 9497 9260

Penny Csenderits, Director

penny.csenderits@cso.nsw.gov.au

02 9497 9319

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