17 Mar 2016

Resisting a subpoena as a non-party: When can oppression be put as a basis to set aside?

by Lana Kelly

Generally, the Court would balance the compliance costs of a subpoena with the public interest in having all relevant material made available to the parties.

Receiving a subpoena, as a non-party or third party to proceedings, can be a daunting and burdensome experience. Depending on the nature of the action and the scope of the documents requested in the subpoena, it may be possible to narrow the range of the documents or even have the subpoena set aside. One of the commonly argued grounds for setting aside a subpoena is that it is, by its nature or effect, "oppressive" on the receiving party.

What's a subpoena: a quick refresher

A subpoena is a Court Order requiring an addressee (the person it is addressed to) to attend court to give evidence or produce documents or things to the Court. It can be issued by either party to the proceedings or the Court and can require a party to:

  • attend and give evidence or
  • deliver books or
  • attend and deliver books.

A request for documents is limited to any document relevant to an allegation in the pleadings.

When may a subpoena be set aside?

A person who has a legitimate interest in having the subpoena set aside may apply to do so (not just the subpoena recipient). To set aside means to annul or negate a court order or judgment by another court order, or in other words, to render the subpoena ineffective. This application may be based broadly on:

  • want of relevance
  • possession and
  • oppression.

When is a subpoena oppressive?

A subpoena will be oppressive when the request for documentation is of a class so wide that it is "oppressive in effect". A request that is oppressive in effect may arise where the subpoena places an onerous responsibility upon the recipient to collect and produce documents which has no relevance to the proceedings.

Typically, when a subpoena fails to provide the recipient with reasonable particularity regarding the documents to be produced, it will be found to be oppressive. This judgment is always made by reference to the individual subpoena, in light of all contextual factors, including the individual recipient and their situation.

What will the Court consider when setting aside a subpoena?

Whether a subpoena will be considered oppressive will depend on all the circumstances, and the categories of oppression are not closed.

Generally, the Court would 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, it may set aside part of a subpoena to remove the oppressive effect that compliance with the whole of the subpoena may have on the recipient.

For example, a request made to a corporation with sufficient resources, including record retrieval systems, trained administrative staff and perhaps in-house counsel, may make an otherwise apparently oppressive subpoena supportable.

Is the subpoena too broad or ambiguous?

Claims of oppressiveness generally arise where the types of documents requested in the subpoena are so broad as to seriously and unfairly burden or prejudice the recipient. For example, a request for any documents in the possession, power or control of the party relating to any business, firm or corporation conducting a business similar to the business of the party requesting the documents (See Naskam Securities Services v Adarm Security Pty Ltd [2000] QDC 241). In this instance, a subpoena would be said to be "too wide on its face".

Oppressiveness could also arise where the description of the documents is so ambiguous that the recipient must form a judgment about what documents would fall within its scope. Before applying to have the subpoena set aside, it could be prudent to clarify with the issuing party what exactly is sought.

Is the subpoena oppressive in effect?

In addition to being too wide on its face, a subpoena might also be "oppressive in effect". There are a range of circumstances in which a subpoena may be oppressive in effect. For example, a subpoena requiring a bank to produce all cheques drawn at a particular branch for a year has been considered to be oppressive and was set aside (Waind v Hill [1978] 1 NSWLR 376).

Can the cost of a subpoena be considered oppressive?

An individual will be excused from complying with a subpoena unless "conduct money" sufficient to meet the reasonable expenses of complying with the subpoena is tendered. This might include reasonable travel expenses to and from the Court. Conduct money can be provided when the subpoena is served or within a reasonable time before attendance. It's also usual practice to deliver a letter with the subpoena saying that reasonable costs of compliance will be paid.

That being said, it is unlikely that conduct money is required when serving a subpoena to produce (ie. documents, or other evidence).

Can a poorly timed subpoena be oppressive?

Subpoenas are generally issued after pleadings are complete. It may be considered oppressive for a party to issue a subpoena to produce documents prior to the completion of disclosure (although this might not be the case in very complex litigation which involves a large amount of disclosure).

What you should do if you think a subpoena is oppressive

In the first instance, where practicable, concerns should be raised with the issuing party through correspondence so as to narrow or expel the terms of the subpoena . A reasonable request made in writing to clarify the nature and scope of the documents sought can act to diminish, or altogether eliminate, the need to make any further application(s) to the Court.

If it does not, then it might be appropriate to apply to the court, but only after you have properly assessed the compliance costs the subpoena would impose.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.