Case: P Dawson Nominees Pty Ltd v Multiplex Pty Ltd (2007) 64 ACSR 53
Outcome: followed
The Court has power to refuse to grant leave to issue or to set aside a subpoena: O 27A and O 27 of the Federal Court Rules . It is well established that a subpoena must be issued for a legitimate forensic purpose: NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [20] . A subpoena will be refused unless the documents sought to be produced "on their face, have some potential relevance to the issues in dispute between the parties": Dunstan v Human Rights and Equal Opportunity Commission [2004] FCA 1137 at [29] . Subpoenas may be issued to non-parties provided that they specify with reasonable particularity the documents which are required to be produced: P Dawson Nominees Pty Ltd v Multiplex Pty Ltd (2007) 64 ACSR 53 at [24]. 12 Ordinarily, that sort of request contained in the catch-all would be set aside, given the well-settled rule that the court will not ask a stranger to the proceedings "to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant." P Dawson (2007) 64 ACSR 53 at [24]. 13 However, the applicants submit that the form of the subpoena is, in this case, justified by the prior correspondence with the ACC. I accept this submission. The applicants are not asking the ACC to incur the costs of ransacking their records at cost. The 1 May 2008 letter from the ACC states that the records have already been searched. Similarly, the applicants are not asking the ACC to form a judgment about matters which the ACC is ignorant; the judgment has already been formed. Moreover, public investigatory bodies like the ACC which have previously conducted or are conducting an investigation and collected documents in the course of such investigation stand in a different position to a non-party such as a bank or business that simply happens to have acquired or generated potentially relevant documents in the ordinary course of business but has no special reason to know of any litigation or relevance of its records to that litigation. Such records as the ACC has can be, and usually are, clearly and separately identifiable and identified as documents obtained in the course of a particular investigation. P Dawson (2007) 64 ACSR 53 at [25]. 15 In addition, the submission that a court will not issue a subpoena as a substitute for discovery is not apposite. First, the authorities to that effect relate to the issue of subpoenas to a party to the litigation, not a non-party such as the ACC: P Dawson (2007) 64 ACSR 53 at [24]. Secondly, "discovery" in this context is a term of art, as was explained by Heerey J in P Dawson (2007) 64 ACSR 53 at [24]. It means only that a court will not ask a person to ransack their records without clear instructions as to what is being sought. Again, as I have explained, that is not the case here. The ACC has already identified the documents; the subpoena is simply a formality requested by the ACC as condition precedent to their handing over the documents. 16 In short, I consider that where a non-party (particularly a public investigatory agency) has: (1) confirmed to a party that it has searched for and identified potentially relevant documents; (2) indicated in writing that it has no objection to producing those identified documents provided a formal subpoena is issued; and (3) the court is satisfied identified documents in fact appear to be potentially relevant, there is in general no obstacle to the court exercising its discretion in the interests of justice to issue a subpoena for the production of those documents.