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Subtle ‘traps’ with Subpoenas for documents

Most people understand what a subpoena is. So far as it relates to documents, it is a Court order requiring documents to be produced to the Court Registry.  That sounds simple, but subpoenas have proved to be a fertile source of case law as they are so often fought over.  A recent NSW Court of Appeal decision illustrates many of the common “battle grounds” for subpoenas.

The particular case was part of what appears to be an ongoing dispute between the litigants.  As a result of a decision in September 2015 the defendant, Aesthete No. 3 Pty Ltd (“Aesthete”) obtained a costs order in its favour against Gilmour Finance Pty Ltd Gilmour Finance Pty Ltd (“Gilmour”).  After both a cost assessment and review, Aesthete successfully appealed to the District Court to have the amount of costs payable to it, increased.  The District Court order was made on 18 January 2018 and Gilmour paid the (increased) costs judgment on 9 February 2018. 

On 21 December 2018 Gilmour sought to appeal against the District Court judgment.  It was well out of time for an appeal and therefore asked for an extension of time based, in large part, on what was said to be health problems affecting its director.  The director made an affidavit saying his ongoing poor health had impacted on his ability to give considered and timely instructions.

Aesthete issued 6 subpoenas to various bodies or organisations, for the production of documents.  As the Court noted, the subpoenas implicitly accepted the director had health problems; but were directed to the extent to which those health problems impacted on his ability to give instructions (and thus, as to whether the extension of time to appeal should be granted).

Gilmour filed a Notice of Motion trying to have the subpoenas set aside, on various grounds. They included the absence of a legitimate forensic purpose; and oppression. This article deals with both, but especially the latter.

Legitimate Forensic Purpose

It is well accepted that documents sought under subpoenas must be directed to a “legitimate forensic purpose” in the litigation. That is, to use another frequently cited phrase, subpoenas cannot be used as a ‘fishing expedition’. The documents requested must have a connection to a real issue in the particular case.  

It was clear from correspondence exchanged between the solicitors, before the Motion was filed, that Aesthete was seeking documents that might throw light on the director’s travel during 2018, to test his claim that his ill health made it hard for him to give timely instructions.  Gilmour argued that this was not a legitimate forensic purpose.  The Court rejected the argument and noted that, given it was the director’s own affidavit that placed emphasis on the consequences of his ill health, documents that might show that he had been able to travel during the relevant periods were relevant to his assertion that he was unable to give timely or considered instructions during the relevant period.

Oppression

Gilmour also contended that complying with the subpoena would be “oppressive” – particularly in relation to subpoenas issued to Gilmour’s present and former solicitors – because documents that were subject to client legal privilege would be ‘caught’.  Gilmour’s lawyers contended (and filed an affidavit to this effect) that to determine whether and to what extent individual documents might be subject to privilege would take many hours of time; that this would involve a cost of some $8,000.00; and that compliance with the subpoena was therefore “oppressive“.

The Court accepted that it was virtually certain that some documents would have to be produced that were subject to client legal privilege, but said Gilmour’s submission misunderstood the distinction between whether documents had to be produced to the Court; and whether the Court would grant access to those documents, once produced.  It rejected the contention that simply producing documents from the file of a litigant’s solicitor was oppressive; and suggested that any question of legal privilege (and the cost of assessing a possible privilege claim) was something that could and should be deferred until an application for access was made.

None of the subpoenas were set aside.

Given the apparently long litigation history, it seems very possible there may be a further dispute in relation to access to the documents which Gilmour (or, strictly, its solicitors) must produce to the Court.

The case made at least the following points relating to subpoenas:

  • Unless they are directed to a “legitimate forensic purpose” they are susceptible to being set aside.
  • Even if a great many documents are required to be produced, it is unlikely the subpoena will be set aside if it appears the documents are sufficiently relevant to issues in dispute.
  • Issuing a subpoena for production of the file of a solicitor of a litigant is generally not regarded as oppressive, even though it is highly likely, if not certain, that production of the file will involve producing legally privileged material to the Court.
  • Issues of client legal privilege are properly to be considered in the context of granting access to documents produced; not in the context of whether a subpoena should be complied with.

Gilmour Finance Pty Ltd v Aesthete No. 3 Pty Ltd [2019] NSWCA 181.

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