In our December 2007 edition we discussed some practical steps which agencies may take to deal with subpoenas which they receive. We noted, in particular, the need to have regard to the relevant court rules, the time and method for complying with subpoenas to produce and applications to recoup the expenses incurred in producing the subpoenaed documents. It was flagged in that article that the next edition of Information Insights would include a detailed discussion of two issues that are relevant to subpoenas to produce: the circumstances under which an application may be made to have a subpoena set aside and to object to inspection of documents.
In this article we will refer to the Federal Court Rules ("FCR"), but it is important to keep in mind that each court will have its own rules and common law in relation to subpoenas and that those rules and the law will be different between jurisdictions. It is also always helpful to check whether your agency has any relevant policies in place, to take care to follow such policies and to consult with your agency’s legal services branch.
Setting aside a subpoena
Whether an application should be made to seta side a subpoena is an issue that should be resolved very soon after the receipt of the subpoena. We discuss the various grounds upon which a subpoena can be set aside below. However, before considering making an application to a court seeking to set aside a subpoena, it should be kept in mind that defects in relation to the scope of the subpoena can often be rectified by raising it with the party that has had the subpoena issued. It is possible that if the problems in the subpoena are brought to the attention of the issuing party, the issuing party may agree to withdraw the subpoena and arrange to have a new subpoena issued which does not have the same problems with it. Alternatively, the issuing party may agree to amend the scope of the subpoena by providing further detail in relation to the documents that the party is seeking disclosure of.
"[T]he authorities do not disclose a single settled approach to the question of when it is definitively appropriate to set aside a subpoena" (Mandic v Phillis (2005) 88 ALD676,  per Conti J). However, in our experience, there are two main grounds upon which an application to set aside is commonly based. The first is when a subpoena is oppressive and the second is when the subpoena constitutes a "fishing" expedition by the issuing party. The considerations that may apply to each of these grounds are not necessarily mutually exclusive and, indeed, it is not uncommon for both grounds to be included in an application to set aside a subpoena.
A claim that a subpoena is oppressive is generally made by the recipient of the subpoena and, most relevantly, requires consideration of the effect that compliance with the subpoena would have on the recipient. Claims of oppressiveness generally arise whether the breadth of documents requested in the subpoena is so broad so as to seriously and unfairly burden or prejudice the recipient. It could also arise if the description of the documents is so ambiguous as to require the recipient the recipient to form a judgment about what documents would fall within the scope if the subpoena. In the later case, it could be prudent to clarify with the issuing party what exactly is sought prior to making any application to set aside the subpoena on the ground that it is oppressive.
In determining an application to set aside a subpoena based on oppressiveness, a court would generally seek to balance the burden that is imposed on the recipient in producing the requested documents (eg. the time and cost involved in complying with the subpoena) with the public interest that all material relevant to the issues in a case be made available to the parties. In some cases, a court may consider it appropriate to set aside part of a subpoena to remove the oppressive effect that compliance with the whole of the subpoena may have on the recipient.
It should also be noted that, if cost and expense is an issue in complying with a subpoena to produce, the FCR does provide a mechanism for the issuing party to meet the reasonable loss or expense incurred by the recipient in complying with the subpoena (Order 27 rule 11). As discussed in our last article, if a recipient intends to apply for an order for such costs to be awarded, it may be prudent, at first instance, to seek to negotiate with the issuing party an amount for payment of such costs without the need for a formal application to be made to the court (and thereby expending further expenses).
A claim that a subpoena to produce amounts to a "fishing" expedition is found in the analogous imagery of a fisherman who casts his fishing line into the wide-open sea in the hope of catching fish, ie. something that is relevant. Again, the breadth of the subpoena will be a relevant consideration. In this context, the main question that generally arises is whether the requested documents have any relevance to the pleadings in a proceeding (noting that leave to issue subpoenas is generally only given after the pleadings are closed, and discovery has taken place).
In some cases, a party may use a subpoena for an illegitimate forensic purpose, eg. as a substitute for discovery or application for further discovery, and/or for the purpose of discovering if the issuing party has a case at all (cf. seeking evidence which is directly relevant to the case). Determining whether a subpoena has been issued for an illegitimate forensic purpose may involve an analysis of the motive of the issuing party. The issuing party may find itself in a position of having to justify the breadth of the documents requested and explain their relevance to the pleadings during a hearing of an application to set aside.
Ultimately, if a court determines that any of the grounds for the application to set aside are made out, the court will generally make an order that the subpoena to produce constitutes an abuse of process and set it aside. If, however, a court does not grant an application to set aside a subpoena, the recipient will have to comply with the subpoena by producing to the court the requested documents. Production to a court does not automatically mean that the parties can gain access to the documents. The court will still have to make a decision on whether to allow the parties to inspect the documents. In this context, it is relevant to consider whether any objections to inspection should be made. We discuss this issue further below.
Objection to inspection
A party and any person who has a "sufficient interest", which would most often include the recipient of the subpoena, may object to a document being inspected by a/any party to the proceeding (Order 27 rule 9). Such objection must be made in writing to the Registrar and must include the grounds of the objection. Upon receipt of such objection, the Registrar must not permit any further inspection of the relevant document and must refer the objection to the Court for hearing and determination. Again, such an objection is commonly made by way of application and supported by an affidavit which sets out the ground(s) of objection. If the application is made by the recipient of the subpoena, it is always prudent to make the application for objection at the same time as producing the documents, which will ensure that none of the parties are permitted to gain access to the documents before the objection is heard and determined by the Court.
In our experience, the two most common grounds which are relied upon in objecting to inspection are that client legal privilege or public interest immunity attach to documents which have been produced.
Client legal privilege
Objection to inspection on the basis that a document is subject to client legal privilege rests on an argument that the document contains a confidential communication between a client and lawyer for the dominant purpose of a lawyer providing legal advice to the client and/or for the dominant purpose of the client being provided with professional legal services relating to a proceeding.
Public interest immunity
A claim that a document attracts public interest immunity may arise when a government agency is the recipient of a subpoena which requests documents that relate to matters of state, and the disclosure of those documents could injure the public interest. Such documents may include cabinet minutes, minutes of discussions between heads of departments, papers brought into existence for the purpose of preparing a submission to cabinet, documents which relate to the framing of government policy at a high level, documents which if disclosured would prejudice Australia’s security or prejudice the investigation of prosecution of an offence. In this regard, the main question is whether inspection of the documents is outweighed by the public interest in preserving its secrecy/confidentiality.
In this article, we have focused on two issues that are relevant to subpoenas to produce: the circumstances under which an application may be made to set aside a subpoena or object to the inspection of documents. It is also important to remember that a discussion with the issuing party may lead to a resolution of the concerns that you have in relation to the subpoena, thus obviating the need to make an application to a court.
The ultimate effect of a successful application to set aside a subpoena or object to inspection is that the parties/a party to the proceeding cannot access the documents requested in the subpoena. Different considerations apply to each type of application and, as always, it is prudent to consult with your agency’s legal services branch if considering whether any such application should be made.