Subpoenas and Interrogatories

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Through a subpoena, a court may order parties (and third-parties) to produce documents. Subpoenas may be set aside on application (r 33.4), if they contain any of the following characteristics (:Commissioner of Police v Tuxford):

  • The subpoena is used to substitute to discovery.
  • The subpoena is oppressive. Defined as:
    1. Subpoena fails to sufficiently specify what documents it called for; or
    2. Compliance with supoena is too onerous (eg, a massive amount of documents).
  • The subpoena has an improper purpose - ie, not for the purposes of litigation.
  • There is an absence of apparent relevance of the documents.
  • The subpoena has no legitimate forensic purpose. Applicant must show forensic purpose before subpoena is granted. Two step process (:Attorney General for NSW v Chidgey):
    1. Identify a legitimate forensic purpose for which access is sought.
      • A legitimate forensic purpose is different to mere relevance.
    2. Establish that it is “on the cards” that the documents will materially assist his or her case.
      • This has been interpreted as 'likely': ICAP Australia v BGC Partners (Australia)

Non-compliance with a subpoena is not taken lightly as is punishable with contempt: r 33.12; J P Morgan Trust v Kapetanovic.

Interrogatories is discovery of evidence through questions under oath (answers constitute evidence: r 22.6). It is ordered when proving other matters in the pleadings has been (or may be) difficult or expensive: Lang v Australian Coastal Shipping Commission.

  • Though interrogatories can be applied for at any stage of the proceedings (r 22.1 (1)), they are usually only ordered after evidence has been submitted, since they are only to be ordered when 'necessary': r 22.1 (4); Vanacom Pty Ltd v Morgan Brooks Pty Ltd.
  • A party can object to answering interrogatories if the interrogatory does not relate to any matter in issue between the parties, is vexatious or oppressive or the answer could disclose privileged information: r 22.2

Parties may be ordered to answer questions, and will have to provide affidavits verifying the answers: r 22.3.

This topic is within Resolving Civil Disputes.

Contents

Required Reading

Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters, [11.270]-[11.370].

Subpoenas to Produce

[1] A subpoena is a court order to give evidence to court. This section deals with subpoenas to produce documents.

  • A subpoena to produce documents can be issued on third parties as well as parties to litigation.
  • Subpoenas must be served personally: r 33.5.
  • It usually contains a schedule of listed documents which the issuing party seeks to have produced to the court.
  • The person served with the subpoena must gather the documents and then produce the documents to the court.
  • Failure to comply with the subpoena would constitute contempt of court, which can result in heavy punishments: r 33.12.
  • A subpoena may be set aside on the grounds that it lacks a legitimate forensic purpose, is oppressive, or has an improper purpose: r 33.4.

Subpoenas are dealt with in Part 33 of the UCPR (the entire Part is important and should be read).

Setting Aside a Subpoena

[2] The power to set aside a subpoena is enshrined in r 33.4 of the UCPR. However, the principles of setting aside a subpoena are given through the common law. Moffitt P in Waind v Hill & National Employees Mutual General Association explains the three stages of the subpoena process:[3]

  1. Obeying the subpoena.
    • Before obeying the subpoena, the person to whom the subpoena is addressed can try to set it aside (below).
  2. The decision of the judge concerning the preliminary use of the documents, including whether permission should be granted.
  3. Admission into evidence of the document in whole or in part.

Accordingly, a subpoena may be set aside on any of the following grounds:[4]

  • The subpoena is used as a substitute to discovery - ie, a party cannot use a subpoena to get all these documents and try establish a case from them.
  • The subpoena is oppressive - ie, if it doesn't specify exactly what documents it called for (the recipient of the subpoena cannot be expected to judge which documents he must give, he must know exactly what is required); or if compliance is too onerous (eg, a massive amount of documents).
  • The subpoena has an improper purpose - ie, not for the purposes of litigation.
  • There is an absence of apparent relevance of the documents.
  • The subpoena has no legitimate forensic purpose.

Such subpoenas would consitute an abuse of process. Accordingly, they may be set aside before the receipient has to comply with them: Commissioner of Police v Tuxford.[5]

  • Note: a phrase commonly used throughout these discussions is "a party is not entitled to go on a fishing expedition". It is applicable to both the principles against subpoenas lacking forensic purposes and subpoenas which are in effect a substitute for discovery. In basic terms, it refers to the fact that a party can't use a subpoena on broad/weak grounds in order to get all these documents and try fish something out of them.

No Forensic Purpose

[6] A subpoena must have a legitimate forensic purpose on which the onus lies with the issuing party: Attorney General for NSW v Chidgey.[7] That case also set a two step process to establishing a forensic purpose:

  1. Identify a legitimate forensic purpose for which access is sought.
    • A legitimate forensic purpose is different to mere relevance.
  2. Establish that it is “on the cards” that the documents will materially assist his or her case.
    • This has been interpreted as 'likely': ICAP Australia v BGC Partners (Australia).[8]

Other aspects of legitimate forensic purpose were identified in Carroll v Attorney-General (NSW) (which were reaffirmed in Attorney General):[9]

  • Need to identify issues in dispute in the trial.
  • What the subpoenaing party’s case will be on those issues.
  • How the subpoenaed documents will assist the party in his case.
  • The concrete grounds for believing that the documents will in fact so assist.

Examples

Much of the principles regarding the setting aside of a subpoena were well illustrated in Commissioner of Police v Tuxford:

  • A subpoena which contained 66 paragraphs (descriptions of 'all' documents to be produced) was found to be oppressive, a substitute to discovery and lacking a legitimate forensic purpose.

Another prominent case was Attorney-General (NSW) v Chidgey:[10]

  • Facts: the applicant was arrested for drug possession. He sought subpoena of documents on the basis that they would contain info that would assist the defence by challenging the admissibility of evidence. Magistrate held that forensic purpose was allowing the applicant to check whether there was compliance with form.
  • Held: the documents were relevant, but the question was whether it was 'on the cards' (likely, not relevant) that they will materially assist - this was not proved. Furthermore, 'checking' documents to see whether someone has a case amounts to a 'fishing expedition' which is not allowed. The subpoena is set aside.
    • Note: this is the case that identified the two-step test for a forensic purpose outlined above.

And also J P Morgan Trust v Kapetanovic, which discusses non-compliance:[11]

  • Facts: the plaintiff issued a subpoena on the defendant's solicitor (Angelovski). Angelovski was served with the subpoena and was informed about it a number of times but failed to comply. He was charged with contempt of court and tried to give evidence of why he didn't comply (claiming, only after being pressed a number of times, that there was nothing left to produce in the file, since the client has taken the documents).
  • Held: “a subpoena could not, and ought not to, be lightly disregarded by a member of the public and particularly a member of the legal profession”. The explanation was unsatisfactory and inconsistent with earlier accounts. Angelovski convicted of contempt and ordered to pay costs.

And also in Liristis v Gadelrabb:[12]

  • Facts: the plaintiff sought the specific performance of an alleged oral contract for the sale of land. It was effectively one man's word against another's, and the plaintiff was backed by his father. The defendant sought a subpoena requiring the production of a copy of the criminal records of the plaintiff and his father.
  • Held: credit of plaintiff and his father to be important and determinative in such a matter. Documents which enabled a party to establish that the other had made false statements could provide basis for cross examination. The evidence was sufficient to show that the plaintiff had a criminal record for perjury (which was enough for the subpoena), but not enough evidence to show the plaintiff’s father was able to be subpoenaed.

Interrogatories

[13] Discovery by interrogatories is a procedure whereby a party may be ordered to answer specific questions. The answers to interrogatories are given on oath and thus can be used in evidence in trial: UCPR, r 22.6. They are usually necessary when proving other matters in the pleadings has been (or may be) difficult or expensive: Lang v Australian Coastal Shipping Commission.[14]

Interrogatories are provided for in Part 22 of the UCPR of the The procedure of interrogatories is summarised as follows:

  • A party can seek an order from the court to administer interrogatories. They can be made at any stage of the proceedings: r 22.1 (1). A draft of the questions is to be filed with the application: (2). The order will only be made if it is “necessary”: (4).
  • The answering party may be ordered to answer specified questions. The answers are usually required to be verified by affidavit: r 22.3
  • If a party provides insufficient answers, the court may make orders for further answer and verification by affidavit. The court also has powers to make orders as it sees fit: r 22.4
  • No order will be granted in personal injury unless the court is satisfied that “special reasons” exist.
  • A party can object to answering interrogatories if the interrogatory does not relate to any matter in issue between the parties, is vexatious or oppressive or the answer could disclose privileged information: r 22.2

Interrogatories were discussed in Vanacom Pty Ltd v Morgan Brooks Pty Ltd:

  • Facts: the plaintiff applied for interrogatories before the evidence has been filed.
  • Held: under r 22.1 (4) the court has to be satisfied the order was 'necessary' at the time it was made. The evidence in this matter had not been filed and it was premature for interrogatories to be delivered at the time in question.
    • Interrogatories should usually take the form of questions which could be asked of a witness in the witness box and added to the evidence.

End

This is the end of this topic. Click here to go back to the main subject page for Resolving Civil Disputes.

References

BKL refers to Dorne Boniface, Miiko Kumar and Michael Legg, Principles of Civil Procedure in NSW (2d ed 2012) Thomson Reuters.

FDR refers to Michael Legg (ed), The Future of Dispute Resolution (2013) LexisNexis.

  1. BKL, p. 632.
  2. BKL, p. 638-40.
  3. [1978] 1 NSWLR 372 at 381.
  4. Commissioner of Police v Tuxford [2002] NSWCA 139.
  5. [2002] NSWCA 139.
  6. BKL, p. 239-40.
  7. (2008) 182 Crim R 536.
  8. [2009] NSWCA 307.
  9. (1993) 70 A Crim R 162 at 181-2.
  10. (2008) 182 Crim R 536.
  11. [2007] NSWSC 1423.
  12. [2009] NSWSC 441.
  13. BKL, p. 656.
  14. [1974] 2 NSWLR 70.
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