Secretary of the Department of Planning, Industry and Environment v Blacktown City Council

1. [1]

   BELL P: This is an application for leave to appeal from a decision of Pepper J (the primary judge) in relation to the issue of a subpoena for production: Jong Mi Hong v Blacktown City Council [2021] NSWLEC 38 at [62]–[63] (the primary judgment or PJ).

2. [2]

   The subpoena was issued by Blacktown City Council (the Council) to the Secretary of the Department of Planning, Industry and Environment (the Secretary) in relation to forthcoming proceedings in the Land and Environment Court between Mr and Mrs Hong (the Hongs) and the Council. The primary judge refused the Secretary’s application to set aside the subpoena.

3. [3]

   The proceedings in which the subpoena has been issued are “Class 3” proceedings brought pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) following the resumption of the Hongs’ land.

4. [4]

   Sections 38(1)-(2) of the Land and Environment Court Act 1979 (NSW) relevantly provide:

5. [5]

   The Civil Procedure Act 2005 (NSW) applies to Class 3 proceedings brought in the Land and Environment Court: see s 4 and Sch 1 of that Act.

6. [6]

   An application for leave to appeal from an interlocutory decision on a matter of practice and procedure faces the high hurdles which have been referred to consistently by this Court: see, for example, PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3]-[6], where the authorities were relevantly collected. Those high hurdles exist for the reasons stated by Sir Frederick Jordan in In re the Will of F. B. Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323; (1946) 63 WN (NSW) 176, who said that:

7. [7]

   What is sought to be challenged in the present case is not so much an exercise of judicial discretion in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense, however, but rather a suggested incorrect application of this Court’s decision in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 (ICAP), which the primary judge considered bound her, but which the Secretary contends was misconstrued and consequently misapplied. ICAP was a decision refusing leave to appeal from a decision of Nicholas J in which his Honour set aside a subpoena issued in civil proceedings on the ground that it lacked a legitimate forensic purpose: see ICAP Pty Ltd v Moebes [2009] NSWSC 306.

8. [8]

   The Secretary contended that the relevant test stated in ICAP for determining whether or not a subpoena should be set aside was whether or not the documents sought by subpoena would materially assist the case of the party which issued the subpoena. At [21] of ICAP, Tobias JA (with whom Basten JA and Handley AJA agreed) held that there was:

9. [9]

   One difficulty with this paragraph is that what Nicholas J had said at [30] of his judgment was that:

10. [10]

    In the present matter, the primary judge, having stated that this Court’s decision in ICAP was directly binding on her, went on (at [62]) to identify the test she understood it to stand for. This was whether or not:

11. [11]

    At [69], the primary judge said that she did not consider that:

12. [12]

    Her Honour’s statement as to the correct formulation of the test accorded with what appeared in [30] of the decision of Nicholas J at first instance in ICAP, but did not pick up the words Tobias JA had added to that paragraph in apparently endorsing it in [21] of this Court’s decision in ICAP, namely that the material assistance which the subpoenaed documents would be likely to afford must be material assistance to the case of the party that had issued the subpoena. This distinction is encapsulated in the sole proposed ground of appeal, which is that:

13. [13]

    The Secretary contends that the primary judge was wrong in her Honour’s identification of what ICAP held, and that the distinction which her Honour drew was in error and critical to the decision at first instance not to set aside the subpoena. The Secretary pointed in this regard to [70]-[71] of the primary judgment:

14. [14]

    The Secretary characterised this aspect of the primary judgment as in substance giving effect to a test of “apparent relevance” to an issue or issues in the proceedings, rather than a formulation of material assistance to the case of the party that issued the subpoena. This first characterisation is consistent with what the primary judge held ICAP to stand for but, as noted above, the Secretary contended that this understanding was wrong.

15. [15]

    The Secretary also submitted that the primary judge’s understanding of ICAP was at odds with a number of statements by the Court of Criminal Appeal as to the appropriate test for assessing legitimate forensic purpose in circumstances where subpoenas are issued in criminal proceedings: see Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667; (1994) 75 A Crim R 8 (Stuart); R v Saleam [1999] NSWCCA 86 (Saleam); and Chidgey. Chidgey, which in effect applied Saleam, was referred to by Tobias JA in ICAP. At [64] of Chidgey, Beazley JA (as her Honour then was, and with whom James and Kirby JJ agreed) said:

16. [16]

    The Secretary submitted, moreover, by reference to the decision of the High Court in Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85 (Alister) that the test of legitimate forensic purpose should be more liberal in the criminal context than the civil context. On this basis, it was submitted that it would be inconsistent with Alister if ICAP was understood in a way that resulted in it being more rather than less difficult to defend a subpoena issued in criminal proceedings than in civil proceedings.

17. [17]

    The Council contended that the primary judge did not err in her understanding of ICAP but that, even if she did, ICAP did not provide a complete statement of the law as to legitimate forensic purpose in this area. It was submitted that just because the party issuing the subpoena may not be able to demonstrate that the documents sought to be subpoenaed would or would be likely materially to assist its case, it did not follow that that party lacked a legitimate forensic purpose in issuing the subpoena.

18. [18]

    The Council pointed to the statement of Brereton J (as his Honour then was) in A v Z (2007) 212 FLR 255 at 257; [2007] NSWSC 899 at [4] (A v Z) in support of this submission. His Honour there said that:

19. [19]

    The Council also resisted the Secretary’s argument by reference to authorities concerned with the issue of subpoenas in criminal proceedings on the basis that it is the Civil Procedure Act which is the source of the power to issue subpoenas, and that that Act provides the procedural framework, including in its overarching purpose provisions, by reference to which the questions sought to be raised ought be considered. There was also an issue as to whether or not the Secretary’s reliance on Alister to ground part of its argument was sound.

20. [20]

    Accordingly, the following questions arise:

21. [21]

    For the reasons that follow, I consider that the primary judge probably erred in her conclusion as to what ICAP in this Court stood for (although, as explained at [30] below, that is not entirely clear) but, insofar as her Honour held that it was not necessary, in order to demonstrate a legitimate forensic purpose, that the documents sought by way of a subpoena would materially assist the case of the party that issued the subpoena, there was no relevant error and her Honour’s decision not to set aside the subpoena did not miscarry.

22. [22]

    It follows that I would grant leave to appeal (because the matter did raise an important question of principle) but dismiss the appeal. Costs should follow the event.

23. [23]

    In strict terms, all that the Court of Appeal’s judgment in ICAP decided was that the criteria for the grant of leave to appeal from the decision of Nicholas J to set aside the subpoena were not satisfied in that particular case, Nicholas J’s decision being of an interlocutory character which required leave to appeal pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW).

24. [24]

    In such a context, Callaway JA said in X v Director of Public Prosecutions [1995] 2 VR 622 at 626 that:

25. [25]

    It should be noted that the practice in at least some intermediate courts of appeal, much like the approach taken by the High Court to the disposition of most special leave applications, is not to give other than general reasons for refusing leave to appeal: see, eg, Simjanoski v La Trobe University [2004] VSCA 125 at [4]. This practice was not seen by the Victorian Court of Appeal as being affected by the observations of the High Court in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72; [2001] HCA 49 at [26] (Roy Morgan), where the plurality stated that reasons should be given for refusing leave to appeal even though those reasons need not be extensive and, in appropriate cases, “little more may be required than a short, perhaps very short, statement of the chief conclusions which the judge refusing leave has reached.” The plurality went on to say, however, that:

26. [26]

    The current practice of the New South Wales Court of Appeal reveals a tendency to give fuller reasons for the refusal of leave to appeal than is perhaps the case in some other jurisdictions (see, for example, L Beck, “The Constitutional Duty to Give Reasons for Judicial Decisions” (2017) 40 UNSW Law Journal 923 at 940-943), although the extent to which reasons are given for such decisions may vary according to the nature of the case: see, eg, La La Land Byron Bay Pty Limited v The Independent Liquor and Gaming Authority [2015] NSWCA 254 at [6]-[11]; and Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44] (Mohareb). Fuller reasons may be given, for example, where a leave application is heard but refused following a concurrent hearing, that is to say, where the leave application and arguments as on appeal are heard at the same time and usually for a longer period than on a pure leave hearing.

27. [27]

    So also considerations of proportionality and the Court’s obligation to give effect to the overriding purpose in s 56 of the Civil Procedure Act call for discriminating judgment as to where and how to strike a balance in giving reasons for refusing applications for leave to appeal and dealing with other interlocutory motions, especially where there has not been proper observance of applicable procedural requirements by litigants such as page limits for written submissions: see Mohareb at [35]-[41]; and Hassan v Sydney Local Health District (No 2) [2021] NSWCA 122 at [16]-[19].

28. [28]

    One consequence of the general practice of the New South Wales Court of Appeal in giving fuller reasons for its decisions refusing leave to appeal than is perhaps the case in other jurisdictions is that, whether or not strictly binding, such decisions (such as the decision of this Court in ICAP refusing leave to appeal) will frequently contain observations of persuasive authority or practical use and value for judges at first instance. It should be remembered, however, that decisions refusing leave to appeal will not always have had the benefit of full argument, this depending principally upon whether or not the leave application has been listed separately or concurrently on the contingent basis that leave to appeal might be granted: see r 51.14 of the Uniform Civil Procedure Rules 2005 (NSW). If the application for leave is listed separately, only 20 minutes are permitted for the development of argument.

29. [29]

    As it will not always be clear from the Court of Appeal’s reasons for refusing leave to appeal whether or not the matter has been heard as a separate leave application or concurrently, caution must be exercised in treating statements in such decisions as giving rise to binding precedent, as her Honour did in the current case. The decision in ICAP, which was an ex tempore decision of the Court of Appeal, does not appear to have been the subject of a concurrent hearing.

30. [30]

    All of this having been said, however, to the extent that ICAP “stands for” anything more than a conclusion that Nicholas J’s decision at first instance in that case did not satisfy the criteria for leave to appeal, Tobias JA’s addition of the words “the applicant’s case” in [21] of his reasons (see [8] above), together with his reference to Chidgey, suggests that the primary judge’s conclusion as to what ICAP held (as reproduced at [10] above) may not be correct. In fairness to her Honour, however, earlier in his reasons in ICAP (at [14]), Tobias JA had said that:

31. [31]

    ICAP should not be taken to constitute an authoritative decision of this Court standing for the proposition that, in civil proceedings, a subpoena will or must be set aside if it cannot be shown that the documents sought on subpoena were likely materially to assist the party that issued the subpoena.

32. [32]

    As explained below, where it can be shown that the documents sought on subpoena are likely materially to assist the party that issued the subpoena, it will generally not be possible for the subpoenaed or some other interested party to contend that the subpoena should be set aside on the grounds of abuse of process or that the issuing party lacked a legitimate forensic purpose. The converse does not, however, follow.

33. [33]

    In Re Don [2006] NSWSC 1125 at [25], Sully J observed, with the wisdom derived from a long and admired career on the Bench, that:

34. [34]

    His Honour went on to observe, however, that in the face of an application to set aside a subpoena, “the issuing party, in order to defeat the application, must be able to identify, and the relevant Court must insist that there be precisely identified in fact, some legitimate forensic purpose, the existence of which can fairly be regarded as justifying the call which the challenged subpoena makes”: at [26](3).

35. [35]

    The expression “legitimate forensic purpose” is of uncertain origin in this context. It first seems to have been used by Samuels JA (who also used the expression “legitimate forensic endeavour”) in Maddison v Goldrick [1976] 1 NSWLR 651 at 666; see also at 668 (Maddison v Goldrick). The context of that case relevantly was that, in the course of a committal hearing, the sergeant of police in charge of the investigation, having admitted in cross-examination that he was the person responsible for preparing and compiling the prosecution brief and that the brief was in the possession of the police prosecutor in court, counsel for the accused sought an order under s 12 of the Evidence Act 1898 (NSW) that the police brief be produced to the Court (although Samuels JA proceeded on the basis that what was really sought were “the statements made to the police by persons who, it was anticipated, would be called as witnesses in the proceedings”: at 662). Section 12 of that Act relevantly provided:

36. [36]

    The order was made, documents were produced to the Court and an order for access permitted. That order was in part the subject of appeal, initially to Taylor CJ at CL, and then to the Court of Appeal. In his judgment, Samuels JA (with whom Street CJ and Moffitt P agreed) said (at 666) that “the magistrate, before exercising his discretion to make them [the documents] available to the defence, must be satisfied that they are required for some legitimate forensic purpose.” His Honour held that in the present case, such a purpose was sufficiently disclosed and that he regarded the call “as a proper exercise of the rights conferred by s. 12, read with s. 26, and thus as involving no abuse of the subpoena process”: at 663. The reference to s 26 was to s 26 of the Justices Act 1902 (NSW), which provided that:

37. [37]

    Samuels JA, referring to s 26 of the Justices Act, said that “documents sought to be used for the purpose of cross-examination are required ‘for the purposes of evidence’”: at 663. His Honour went on to say (at 666) that:

38. [38]

    Later in his decision, Samuels JA referred to what was in substance the purpose which lay behind the subpoena, namely to secure documents which would supply “the opportunity to pursue a proper and fruitful course in cross-examination”: at 667. His Honour described this as “on the face of it, a legitimate forensic endeavour which could not be advanced unless Mr. Hosking was able to see the documents necessary to sustain it”: at 668. It must be noted that Samuels JA saw this as an aspect of a defendant’s right under s 36(3) of the Justices Act to make “full answer and defence” to the charges laid: at 668.

39. [39]

    Although Maddison v Goldrick was not referred to in Alister, the decision of the High Court in Alister bears a striking similarity to the reasoning in Maddison v Goldrick. Gibbs CJ in Alister expressly noted (at 413-414) that the applicants were “unable to say that any documents of the kind described in the subpoena exist or, if they do exist, that they are likely to assist the applicants’ case”. After making the well-known observation (at 414) that “[a]lthough 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”, the Chief Justice went on to say at 414-415, in a passage that bears close and careful attention, that:

40. [40]

    It must follow from this passage (in which the reference to “discovery” is to be understood from its context as “disclosure”: see R v Saleam (1989) 16 NSWLR 14 at 19; (1989) 39 A Crim R 406) that it will not be fishing, manifesting an illegitimate forensic purpose, to seek to subpoena apparently relevant documents for the purposes of cross-examining an important witness, even if the subpoenaing party does not know whether those documents will assist or advance its case. The passage also supports the view that a party may be materially assisted in its case by knowing what apparently relevant documents say, even if those documents may not ultimately materially advance that party’s case. As Beazley JA observed in Chidgey at 552, it is “both important and instructive to understand the manner in which Gibbs CJ [in Alister] saw this test operating at a practical level.” See also A v Z at [10].

41. [41]

    Some care must also be taken in transposing observations in Alister, which was principally a case concerned with a claim for public interest immunity, to the general law relating to the setting aside of subpoenas or the inspection of documents produced on subpoena. Similar reservations apply in relation to the decision of the House of Lords in Air Canada v Secretary of State for Trade [1983] 2 AC 394, upon which the Secretary placed considerable reliance in the present case, for the reasons pointed out by Brereton J (as his Honour then was) in A v Z at [4]-[7].

42. [42]

    In National Employers’ Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 384 (Waind), Moffitt P (with whom Hutley and Glass JJA agreed) said that:

43. [43]

    The expression “legitimate forensic purpose” was also used by McLelland J in Commissioner of Taxation v Glastonbury Steel Fabrications Pty Ltd (1984) 75 FLR 298; (1984) 15 ATR 887 (Glastonbury). In that case, a broadly expressed subpoena had been issued to the Deputy Commissioner of Taxation in winding up proceedings. McLelland J (at 300) said that “[p]rima facie documents of the general kind described in the subpoena would not appear to me to be relevant to any issue in the proceedings” (emphasis added). His Honour went on to say that “[i]t is conceivable, however, that among them there may be something which is relevant or which at least may be able to be utilised for some legitimate forensic purpose” (emphasis added). His Honour expressed the conclusion that he was not satisfied, at the time of the application to set aside the subpoena, that the documents sought were required for any legitimate purpose but, rather than setting the subpoena aside, directed that the Deputy Commissioner was not required to produce the documents unless so directed at or after the commencement of the hearing. In other words, his Honour envisaged the potential for the case to develop in a way in which the subpoenaed documents may become relevant, or some legitimate forensic purpose emerge, in light of the progress of the case.

44. [44]

    For present purposes, it is relevant to note that McLelland J seemed to accept, in the passage referred to above, that “apparent relevance” of the documents would have justified the issue of the subpoena.

45. [45]

    The expression “legitimate forensic purpose” was also used by Beaumont J in Trade Practices Commission v Arnotts Limited [1989] FCA 311 (Arnotts). His Honour there said that the issue of a subpoena will be an abuse of process if it is not issued for a legitimate forensic purpose and referred to the decision of Powell J (as his Honour then was) in Botany Bay Instrumentation and Control Pty Limited v Stewart [1984] 3 NSWLR 98 at 100 (Botany Bay). Powell J did not himself use the expression “legitimate forensic purpose”, but rather listed a variety of cases in which subpoenas had been set aside. It is useful to set out that list, omitting references:

46. [46]

    To these examples may be added “lack of apparent relevance” for the reasons explained by Brereton J (as his Honour then was) in Portal Software v Bodsworth [2005] NSWSC 1115 at [19]-[21] (Portal Software), citing amongst other cases, Hatton v Attorney-General (Cth) (2000) 158 FLR 31; [2000] FamCA 892 (Hatton), a decision of the Full Court of the Family Court of Australia.

47. [47]

    In Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 at 102; [1989] FCA 340 (Arnotts (No 2)), Beaumont J accepted the submission made by the party that issued the subpoena that the documents sought “do have apparent relevance to the issues in the proceedings”, namely that the material sought could reasonably have been expected to throw light on the definition of the relevant market in the principal proceedings, and also on the suggestion (denied by Arnotts) of its domination of the market by virtue of the Nabisco acquisition. His Honour formulated the following approach (at 103):

48. [48]

    At another point in his reasons, Beaumont J had said that it was sufficient that the documents could “possibly throw light” on the issues in the substantive proceedings: at 103. As Gleeson JA pointed out in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 at [24] (Force Corp), the use by Beaumont J of the word “possibly” in this phrase is not used in any speculative sense. As his Honour outlined, it is to be understood as conveying the notion that the documents sought could reasonably be expected to throw light on some of the issues in the proceedings.

49. [49]

    The reference to “apparent relevance” in the passage from Arnotts (No 2) quoted at [47] above resonates with McLelland J’s observation in Glastonbury set out at [43] above, namely that “[p]rima facie documents of the general kind described in the subpoena would not appear to me to be relevant to any issue in the proceedings” (emphasis added). Both McLelland and Beaumont JJ were concerned with the same inquiry: see also, employing the language of “apparent relevance”, Hatton; Brand v Digi-Tech [2001] NSWSC 425 at [35] (Brand); Portal Software at [20]-[24]; Force Corp at [22]; Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320; [2015] NSWCA 303 at [12] (Lowery); and D v Australian Financial Security Authority, formerly known as Insolvency & Trustee Service Australia [2017] NSWCA 50 at [56] (“sufficient apparent connection”).

50. [50]

    In at least one part of his Honour’s judgment in Carroll v The Attorney-General for New South Wales (1993) 70 A Crim R 162 at 181 (Carroll), Mahoney AP also employed the language of “apparent relevance”:

51. [51]

    In Carroll at 181, Mahoney AP also drew a distinction between a subpoena issued to a party and one issued to a third party, observing that, in the latter case:

52. [52]

    In Burchard v Macfarlane [1891] 2 QB 241, Lord Esher MR, having noted that, prior to the Judicature Acts, there was no such thing as a bill of discovery against third parties (at 247), referred to the subpoena duces tecum and said that if an objection was taken to access the document or documents produced, “[a]ll that could be done was that the Judge, when he was satisfied that it was evidence in the case for either of the parties, might order it to be read”: at 248 (emphasis added). One does not see in this judgment any reference to the subpoena needing to be justified as assisting the case of the party that issued it.

53. [53]

    The same point may be made by reference to the earlier decision of Sir James Knight-Bruce VC in Phelps v Prothero (1849) 2 De G & Sm 274; [1849] 64 ER 123 at 130, where it was said:

54. [54]

    In both Arnotts (No 2) and Botany Bay, Beaumont J and Powell J referred to this Court’s decision in Waind. In Waind at 384-385, Moffitt P had drawn attention to the observations of Bayley B in Summers v Moseley (1834) 2 Cr & M 477 at 486; (1834) 149 ER 849 at 852 (Summers), which the then President observed “put the power in relation to a subpoena duces tecum in its simplest form”. In Summers at 852, the Baron had said:

55. [55]

    In Waind at 384, elaborating on this passage and answering one of a series of rhetorical questions his Honour had earlier posed including whether a judge has a discretion to permit the use of the documents in any such way as he considers will aid a “proper decision of the issues between the parties”, by “facilitating the elucidation of the truth in respect of relevant facts”, Moffitt P said that:

56. [56]

    In Lane v The Registrar of The Supreme Court of New South Wales (Equity Division) (1981) 148 CLR 245 at 259; [1981] HCA 35, the High Court observed that a “subpoena to produce documents is an important means of establishing the facts in issue in litigation and thereby enabling justice to be done.” Again one can see the correlation drawn between the use of subpoenas to facilitate justice by requiring production of documents apparently relevant to or capable of casting light on the matters in issue in the litigation. This is a line of authority that can be drawn back through Waind to Summers.

57. [57]

    This is no doubt one of the reasons why medical and telephone records, for example, are frequently the subject of subpoenas, even though it will not be known or knowable ex ante whether or not the subpoenaed material will, or is likely to, assist the party issuing the subpoena. To insist on such an added requirement would, as Brereton J observed in A v Z, “require an issuing party to be able to predict the contents of documents potentially relevant, and would unduly constrain the ability of litigants to investigate the facts”: at [18]. So long as the subpoena can plausibly be seen to relate to an issue or issues in the proceedings or to “cast light” on such an issue (see R v McPhail (1988) 36 A Crim R 390 at 404-405), and the subpoena is not in other respects either too vague or oppressive, it should not be set aside, nor should the inspection of documents produced be refused.

58. [58]

    As Moffitt P observed in Waind, writing in 1978, “concepts as to what is appropriate between parties have changed in favour of fuller disclosure of relevant matters”: at 384. Examining the question more than 40 years later, one important contemporary contextual matter that informs the Court’s consideration of the proper use of subpoenas in civil litigation is s 56 of the Civil Procedure Act and its identification of the overriding purpose of that Act and of the Uniform Civil Procedure Rules in their application to civil proceedings, namely to “facilitate the just, quick and cheap resolution of the real issues in the proceedings”. An appropriately targeted subpoena may advance the overriding purpose in a particular case, even though it may not be able to be shown that the documents subpoenaed either will or will be likely to assist the case of the party that has issued the subpoena.

59. [59]

    Another important matter informing the Court’s consideration of what is required for the interests of justice in a case such as the present will be the nature of the proceedings and any legislative guidance as to the procedure to be followed in particular classes of proceedings, such as s 38 of the Land and Environment Court Act, extracted at [4] above, which arguably favours a more generous approach to the scrutiny of subpoenas than in ordinary, adversarial civil litigation. The importance of the procedural context in which a subpoena is issued has been identified by Benjamin Coles in “The Confetti of the Justice System – Subpoenas, Justice and Third Parties” (2016) 42(3) Australian Bar Review 385 at 396-398, 407-408.

60. [60]

    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. It is sufficient to observe 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: see CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 392; [1997] HCA 33. The variety of grounds on which a subpoena may be set aside is illustrated by the list of examples supplied by Powell J in Botany Bay at 100 (see [45] above).

61. [61]

    As Brereton J said in A v Z at [3], a “subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining relevant evidence.” Evidence in that sense need not be admissible evidence and, as Samuels JA observed in Maddison v Goldrick at 663, documents subpoenaed for the purposes of cross-examining a witness have been treated as documents required for the purposes of evidence. This extends to cross-examination on issues of credit: see, eg, Brand at [36]; Norris v Kandiah [2007] NSWSC 1296 at [3]; and Liristis v Gadelrabb [2009] NSWSC 441 at [5] (Liristis). In Liristis, copies of the plaintiff’s criminal records regarding any convictions for dishonesty, particularly perjury, and any convictions under the Oaths Act 1900 (NSW) were successfully subpoenaed in circumstances where there was evidence before the Court that an earlier conviction for perjury had been quashed but a new trial ordered; see also Lowery at [10], [54]

62. [62]

    The use of subpoenas to obtain documents that may be used in cross-examination is also illustrated by the decision of the Queensland Court of Appeal in R v Spizzirri (2000) 117 A Crim R 101; [2000] QCA 469 at [24], and the Full Court of the Supreme Court of South Australia in Carter v Hayes (1994) 61 SASR 451 at 453; (1994) 72 A Crim R 387 (Carter), where King CJ (with whom Bollen and Mullighan JJ agreed) said:

63. [63]

    What these decisions as well as Alister illustrate and confirm is that a party issuing a subpoena will not necessarily lack a legitimate forensic purpose if he, she or it is unable to establish that the documents sought by way of subpoena will assist or be likely to assist the issuing party’s case – the “test” effectively contended for by the Secretary in the present case.

64. [64]

    But it does not follow – and this is the vice in the Secretary’s submissions – that the fact that it may not be able to be shown that the subpoenaed documents will or are likely to assist the party that has issued the subpoena (or that it is “on the cards” that that party will be assisted) means that the issuing party lacks a legitimate forensic purpose. Putting the matter slightly differently, that the issuing party is likely to be assisted in its case by production of the subpoenaed documents may make it more likely that that party’s purpose will be held to be legitimate, but the 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. It may, however, depending on the circumstances of the case, be more difficult to establish the legitimacy of the forensic purpose in such circumstances.

65. [65]

    It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are “apparently relevant” or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.

66. [66]

    That a subpoena need not necessarily or automatically be set aside if it cannot be shown that the material sought will not or will not be likely to assist the party issuing the subpoena is also supported by a number of intermediate appellate authorities not already referred to. Thus, in Santos Ltd v Pipelines Authority of SA (1996) 66 SASR 38 at 52, Debelle J, with whom Cox and Prior JJ agreed, stated that a "party seeking to uphold the issue of a subpoena seeking documents must prove that the documents have an apparent relevance to the issues in the arbitration." This decision was referred to by Brereton J (as his Honour then was) in Portal Software at [29].

67. [67]

    In Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 100 at [34], Young JA, referring to Waind, observed that:

68. [68]

    There is a plain difference between “apparent relevance” and “fishing”, the latter being the metaphor that is frequently deployed in this area of discourse: see, for example, The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; (1938) 55 WN (NSW) 215. The word “apparent” admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.

69. [69]

    If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. To that extent, the statement in Chidgey at [59] that mere relevance is “not sufficient”, and a similar statement in Carroll at 182 that “mere relevance is not enough” may, with respect, be apt to mislead or confuse. In the latter case, Mahoney AP said at 182 that a party issuing the subpoena:

70. [70]

    Of course it will remain the case that, if it can be demonstrated that the party issuing the subpoena has done so for some improper, illegitimate or ulterior purpose foreign to the litigation, the Court in the exercise of its discretion may set aside the subpoena as an abuse of process or refuse access to the subpoenaed documents in spite of their apparent relevance. Provided, however, that the documents sought are apparently relevant to the issues that have or are likely to arise in the proceedings or have some evidential value (which may extend to value for the purposes of cross-examination, including testing the credit of witnesses including expert witnesses), to the extent it may be necessary to establish a legitimate forensic purpose, such a purpose may be presumed.

71. [71]

    The converse of this, namely the absence of any apparent relevance (in the broad sense of that term) 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 a part of a subpoena: see Portal Software at [22]. That is because, if the documents subpoenaed do not meet the relatively low threshold of apparent relevance, it may readily be inferred that the documents are being sought for some purpose foreign to the litigation. That may not have been the issuing party’s motivation, but the lack of apparent relevance test is a convenient means of delimiting that which is legitimate.

72. [72]

    In civil as opposed to criminal proceedings, in most cases, the issues will in the first instance have been identified and defined by the pleadings and particulars. The issues are frequently further refined by amendments to the pleadings and upon the service of witness statements and affidavits. This is a key difference between civil and criminal proceedings and, to the extent a different test or approach is taken in criminal proceedings, it may be explained by the absence of pleadings and the very different procedural context in which criminal proceedings take place. As explained below, the procedural landscape in relation to criminal proceedings has also changed significantly over recent decades.

73. [73]

    For completeness, something should also be said about onus. In Portal Software at [28]-[29], Brereton J observed that the fact that an application to set aside a subpoena amounts to an assertion of an abuse of process suggests that ordinarily some onus would lie on the person contending that there is such an abuse of process to make that allegation good, before noting that the issuing party at least bears a forensic onus of showing the relevance of the documents sought to the issues in the proceedings. His Honour noted that the rationale for this was that a non-party will not usually know what the issues are in the proceedings so as to be able to demonstrate irrelevance of the documents sought to be subpoenaed.

74. [74]

    To return to the Secretary’s argument, it was submitted that the “test” for setting aside a subpoena in civil proceedings should be no less demanding than in criminal proceedings, namely that summarised by Beazley JA in Chidgey and noted at [15] above, this being a test that derived ultimately from Hunt J’s decision (as his Honour then was) in R v Saleam (1989) 16 NSWLR 14; (1989) 39 A Crim R 406, and which may be traced through Stuart and Saleam in the Court of Criminal Appeal. Hunt J’s decision in turn drew on Alister.

75. [75]

    The Secretary placed heavy emphasis on a passage in the judgment of Brennan J (at 456), as well as in the relevantly dissenting joint judgment of Wilson and Dawson JJ (at 439) in Alister to the effect that a more liberal approach should be taken to the inspection of documents by the Court in criminal proceedings as opposed to civil proceedings. It is important to appreciate the very particular context in which Brennan J made this observation, namely a claim for public interest immunity in a case where the “central issue was whether the accused had been framed by security forces”: at 456. Brennan J went on to say (at 456) that:

76. [76]

    Just as it is important to appreciate the very special context in which Brennan J made his observations about the adoption of a liberal approach to the inspection of documents on a contested application for production of documents, so also, as Moffitt P observed in Waind in the passage cited at [55] above, conceptions of what justice requires in a particular context may change over time and with changes in circumstances. In this context, there has been a sea change in the law relating to disclosure in the criminal law in the decades since Maddison v Goldrick, Alister and R v Saleam (1989) 16 NSWLR 14; (1989) 39 A Crim R 406 were decided.

77. [77]

    Thus in R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [46]ff (Reardon), the Court of Criminal Appeal adopted the principles concerning the prosecution’s duty of disclosure stated by the English Court of Appeal in R v Keane [1994] 1 WLR 746 at 752; [1994] 2 All ER 478, to the effect that:

78. [78]

    Further, in Gould v Director of Public Prosecutions (Cth) (2018) 333 FLR 352; [2018] NSWCCA 109 at [65], Basten JA (with whom Johnson and Adamson JJ agreed) explained that the “duty of disclosure extends to material which might open up useful lines of inquiry to the defence, without any narrow view being taken of what might be relevant” (footnote omitted).

79. [79]

    The statement made by Brennan J in Alister about the need for a liberal approach to be applied to the inspection of documents in circumstances where access is opposed, so heavily relied upon by the Secretary in oral argument in this case has, in my view, very little general application to the proper approach to be taken either to the setting aside or the grant of access to documents produced on subpoena in civil proceedings. Even to the extent it may have had some application to documents produced in answer to a subpoena in a criminal case, it must be understood in its historical context. That context has changed significantly in terms of disclosure in criminal cases in the almost four decades since Alister was decided.

Conclusion

1. [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:

2. [81]

   For these reasons, the Secretary’s argument should be rejected. The primary judge was correct in not setting the subpoena aside. Since preparing these reasons, I have also had the benefit of reading the reasons for judgment of Brereton JA. Save for our difference as to what was decided by this Court in ICAP and as to whether or not the primary judge was in error in her understanding of what that case stood for, I am in agreement with his Honour’s valuable analysis of the practically important question presented by this application.

3. [82]

   Leave to appeal should be granted but the appeal should be dismissed with costs.

4. [83]

   BRERETON JA: The essential place of the subpoena for production of documents in the Court’s armoury to do justice has been recognised at least since, in Summers v Moseley, in a passage referred to in this Court by Moffitt P in National Employers’ Mutual General Association Ltd v Waind; Waind v Hill, [1] Bayley B said: [2]

5. [84]

   In modern litigation, 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.

6. [85]

   Because the use of subpoenas is so widespread, 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 this Court. However, history shows that from time to time the pronouncements of this Court pertaining to the law of subpoenas have provided enduring guidance on generic questions of principle in this field. [3] The present application for leave to appeal raises the question whether, at least in the context of civil proceedings, for there to be a legitimate forensic purpose for the issue of a subpoena, it is necessary that the documents the subject of the subpoena will likely materially assist the case of the issuing party, or whether it suffices that the material called for will likely add, in the end, in some way or other, to the relevant evidence in the case. That is a question about which there has been some controversy, the resolution of which will provide clarity on an issue of general principle. Leave to appeal should be granted.

7. [86]

   I have had the benefit of reading in draft the judgment to be delivered by Bell P. I agree with his Honour that the primary judge did not err in holding that it was not necessary, in order to demonstrate a legitimate forensic purpose for the issue of a subpoena, that the documents sought would likely materially assist the case of the party that issued the subpoena, and consequently did not err in dismissing the application to set aside the subpoena. For myself, however, I am inclined to the view that her Honour also did not misread this Court’s decision in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd. [4]

8. [87]

   The controversy in this area has arisen because, as Sully J pointed out in Re Don [5] in the passage set out in the President’s judgment, [6] some of the cases are criminal and some civil, some involve claims for public interest immunity, and some deal with the question of access to documents produced as distinct from the issue of the subpoena. [7] To those contributing factors might be added that some deal with the context of discovery rather than of subpoenas for production. As a result, rules applicable in one context have sometimes been applied in a different context without regard to the historical and conceptual distinctions.

9. [88]

   Although, as McCallum JA observes [8] with reference to those observations of Sully J, it may be undesirable to propound a test, at least at too specific a level, as to when a subpoena should be set aside, some general principles which inform the proper approach can be stated. The first is that the power of the Court to set aside a subpoena, in whole or in part, is but an instance of its power to regulate its processes and, in particular, to intervene in a case of abuse of its process. [9] The second is that, the notion of “legitimate forensic purpose” being the converse of “abuse of process”, a subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining apparently relevant evidence. [10]

10. [89]

    I agree with Bell P, for the reasons given by his Honour, that an issuing party is not required to show that it is “likely” (or “on the cards”) that the documents sought will materially assist its case, as distinct from that it is “likely” (or “on the cards”) that they will add, in some way or another, to the relevant evidence in the case, and that the essential question is whether the documents called for are apparently relevant, or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of the subpoena. 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. [11] This reflects the notions that the documents relate to, throw light on, or are sufficiently relevant to the dispute; [12] that they “appear relevant in the sense that they relate to the subject matter of the proceedings”; [13] or that they could possibly throw light on the issues in the case. [14] 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. [15]

11. [90]

    The applicant’s submission that it is an essential element of legitimate forensic purpose that it is “likely” – or, “on the cards” – that the documents sought will materially assist the issuing party’s case, and that it is insufficient for an issuing party to establish merely that the documents were or might be relevant, invokes statements in Attorney-General (NSW) v Chidgey [16] and ICAP. [17] As I have endeavoured to explain elsewhere, [18] the supposed requirement that it be likely that the documents sought will “materially assist the issuing party’s case” has, in the cases which employ that phrase, been permitted to migrate from a rule which was once but is no longer applicable to the law of discovery, [19] to the different context of a subpoena for production, without recognition of the historical and conceptual distinctions between the processes. Moreover, that has occurred in a context which has been complicated by an overlapping claim for public interest immunity. The broader approach which I favour is supported by authority, including of this Court. [20] The stricter test would require an issuing party to be able to predict the contents of potentially relevant documents, and unduly constrain the ability of litigants to investigate the facts, for example, by issuing subpoenas for production of medical records and telephone records, unless the issuing party was able reasonably to predict that they would favour its case.

12. [91]

    It is unnecessary to resolve whether the same rule applies in criminal cases. While the argument that if anything a more generous approach should apply in criminal cases at first sight has much attraction, the observation on which it is founded was made in the context of a claim for public interest immunity, [21] and does not establish a general rule concerning subpoenas. The approach which has been adopted in the criminal context has been much influenced by that applicable to public interest immunity claims, and, as the President explains, in times when a much narrower view was taken of an accused person’s entitlement to disclosure than now prevails. The changes which have taken place in that respect may support the extension to criminal cases of the test applicable to subpoenas in civil cases. On the other hand, as I have mentioned, police and prosecutors in criminal cases have extra-curial investigatory powers not available to parties in civil cases, which may explain a distinction.

13. [92]

    As the President shows, ICAP does not provide authoritative guidance in any event, because it was a refusal of an application for leave to appeal from the judgment of Nicholas J, who stated the test in terms that I favour: [22]

14. [93]

    Nicholas J did not refer to any requirement that the “material assistance” be to the party that issued the subpoena. It is true that in this Court, Tobias JA (with whom Basten JA and Handley AJA agreed), said that there was: [23]

15. [94]

    However, in my view, that paragraph was not addressing the question of whether it was part of the test that the documents sought materially assist the issuing party. First, the emphasis given to the words “will materially assist” shows that the paragraph was addressing the degree of relevance required, rather than whose case would be assisted. That this is so is reflected in the circumstance that Tobias JA evidently perceived no difference between what he was expressing and the different words used by Nicholas J, “will materially assist on an identified issue”, which did not include any reference to “the applicants’ case”. Secondly, this passage followed the following discussion of A v Z:

16. [95]

    As I understand that passage, it does not involve any disagreement with A v Z. The issue in ICAP was the whether the test required that it be “likely”, or “on the cards”, that the documents sought would assist; it was concerned with the degree of likelihood that the subpoena would capture relevant documents, not with whether the documents would likely “materially assist the case of the issuing party” as distinct from “merely adding in some way or other to the relevant evidence in the case”. The Court simply did not consider the latter question, because there was no issue about it, “as it was accepted that the documents were sought to support the applicants’ case on the issue of causation”. As the primary judge considered, [24] the effect of ICAP is that the relevant test is whether or not it is likely that the documents sought will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will materially assist on an identified issue; ICAP is silent as to whether it is necessary that it be likely that the documents will materially assist the issuing party’s case.

17. [96]

    In any event, I agree with Bell P that her Honour was right to hold that it was unnecessary for the Council to demonstrate that the documents sought to be produced would materially assist its case, and sufficient to establish that the documents would assist on an identified issue. [25]

18. [97]

    I agree with the orders proposed by Bell P.

19. [98]

    McCALLUM JA: I have had the benefit of reading the judgment of Bell P in draft. I agree with his Honour’s conclusion that there was no relevant error in the primary judge’s decision not to set aside the subpoena. Subject to what follows, I agree with his Honour’s reasons for reaching that conclusion. I would particularly endorse his Honour’s observation as to the danger in purporting to formulate a definitive “test” for setting aside a subpoena and would in that context echo the remarks of Sully J in Re Don set out in his Honour’s judgment.

20. [99]

    In light of my agreement on that issue, it is not necessary to consider the primary judge’s analysis of this Court’s decision in ICAP save to note two matters. First, as explained by the President, contrary to her apprehension, the primary judge was not bound by that decision as it was the refusal of an application for leave to appeal. Secondly and in any event, I am not persuaded that the primary judge erred in her analysis of that decision.

21. [100]

    Since writing this judgment I have had the benefit of reading the judgment of Brereton JA in draft. I agree with his Honour’s additional remarks.

22. [101]

    I agree with the orders proposed by the President.