Subpeonas to produce documents – what constitutes a “legitimate forensic purpose”?

13 Aug 2021

 A three judge bench of the New South Wales Court of Appeal (the Court) recently handed down a decision concerning the origins and scope of the “legitimate forensic purpose” of subpoenas to produce documents.

In Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, the Secretary sought to appeal the decision of the Land and Environment Court of New South Wales in which the primary judge refused to set aside a subpoena to produce issued to the Secretary by Blacktown City Council (the Council).  The appeal was brought on the basis that the primary judge did not properly apply the decision of the Court in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 (ICAP) in determining that the subpoena issued by the Council should not be set aside on the ground that it lacked a legitimate forensic purpose.

For the purposes of this article, it suffices to say that ultimately, ICAP had no bearing on the Court’s interpretation of what constitutes “legitimate forensic purpose”, as the Court held that the primary judge erred in concluding she was bound by ICAP, a decision refusing leave to appeal ([31] (Bell P); [92] (Brereton JA); [99] (McCallum JA)).

The Court considered that the proper construction of legitimate forensic purpose was wider than what the Secretary submitted it to be, and it was held that a subpoena will have a legitimate forensic purpose if the issuing party can show that the documents sought by the subpoena are "apparently relevant":

1. by reference to the issues raised by the pleadings or particulars, or in affidavits or witness statements served by the time the subpoena is issued ([57] and [68] (Bell P); [89] (Brereton JA)); or
2. have an evidentiary value, which extends to documents sought to be used when cross-examining a witness, even if ultimately:
   1. the documents are not considered admissible evidence ([61] Bell P); or
   2. the documents do not "materially assist or advance" the case of the issuing party ([40] (Bell P); [90] (Brereton JA)).

Bell P (at [57]) provided the helpful example of telephone or medical records which may be sought by a subpoena to produce – the issuing party cannot predict whether such records can materially assist or advance its case until such records are obtained and reviewed by it (see also Brereton JA at [90]). Therefore, the Court should consider whether such records can be plausibly seen to "relate to" or "cast light on" an issue or issues in the proceeding ([71] (Bell P)).

Therefore, a subpoena recipient seeking to set aside a subpoena on the basis the subpoena has no legitimate forensic purpose should focus on whether the subpoena has been issued for some improper, illegitimate or ulterior purpose that does not accord with the issues raised by the proceeding ([71] (Bell P)).

The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.