Case: Mandic v Phillis [2005] FCA 1279 , 225 ALR 760
Outcome: cited
various grounds upon which an application may be made to have a subpoena set aside need not be presently canvassed in any great detail. Some of these grounds have been usefully collated by Powell J in Botany Bay Instrumentation &amp; Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 as follows (citations omitted): Although a reference to the authorities makes it tolerably plain that the court will exercise its undoubted jurisdiction to set aside a subpoena in a variety of cases, as, for example: 1. unless the subpoena was issued for the purpose of a pending trial, hearing or application ... 2. where to require the attendance of a witness would be oppressive ... 3. where the subpoena had not been issued bona fide for the purpose of obtaining relevant evidence and the witness to whom the subpoena had been addressed was unable to give relevant evidence ... 4. where the subpoena has been used for the purpose of obtaining discovery or further discovery against a party ... 5. where the subpoena has been used for the purpose of obtaining discovery against a third party... 6. where to require a party to comply with a subpoena to produce documents would be oppressive ... 7. where the subpoena has been issued for a purpose which is impermissible, as, for example, "fishing" ... This summary was accepted by Beaumont J in Trade Practices Commission v Arnotts Limited (No 2) (1989) 88 ALR 90 at 102 and by Conti J in Mandic v Phillis [2005] FCA 1279 at [33] , 225 ALR 760 at 771 to 772. The terms of O 27 r 4 of the Federal Court Rules should thus be noted. It is that rule which expressly confers the power to set aside a subpoena and identifies those who may apply for such an order. The rule provides as follows: Setting aside or other relief (1) The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under subrule (1) must be made on notice to the issuing party. (3) The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest. In support of their submission that Pharm-a-Care does not have sufficient standing to apply to have the subpoena set aside and does not have a " proprietary interest in the documents sought ", the Second to Sixth Respondents rely upon the decision of Conti J in Mandic at [32]. An application was there made by a non-party to have a subpoena set aside. What was not in issue was the interest a party had in setting aside a subpoena. Why r 4(1) and the express reference to " the application of a party " did not confer sufficient authority upon Pharma-a-Care was not sufficiently explained. A contention that the phrase " having a sufficient interest " qualifies both the reference to " any person " and " a party ", such that the Rule is read as referring to " a party ... having a sufficient interest ", is (with respect) unsustainable. That is not what the Rule says and such a construction of the Rule would render the reference to " a party " unnecessary. The reference to " any person having a sufficient interest ", upon such a construction, would identify the entirety of persons &#8212; be they parties or non-parties &#8212; that could apply. Mandic is no authority to the contrary.