Case: Mandic v Phillis [2005] FCA 1279 , 225 ALR 760
Outcome: followed
When considering whether or not a subpoena has been issued for a legitimate forensic purpose, it is sufficient if the material sought to be subpoenaed has some " apparent relevance to the issues in the principal proceedings " that is " adjectival ": Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 at 103 per Beaumont J. Relevance which is purely " speculative " will not suffice: Mandic v Phillis [2005] FCA 1279 at [36] , [2005] FCA 1279 ; 225 ALR 760. Conti J there noted Beaumont J's reference in Arnotts to the judgment of Deane and Gaudron JJ in Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 at 502 and continued: [35] Drawing on Deane and Gaudron JJ's above dicta, Beaumont J next stated that the determination of whether a subpoena was issued for a legitimate forensic purpose depends not just on an analysis of the motive of the issuing party, but also on the impact of the subpoena on the party upon whom it is served. His Honour enumerated two questions to be asked (at ALR 103 of his reasons for judgment): (1) Does the material sought have an apparent relevance to the issues in the principal proceedings, that is, is adjectival, as distinct from substantive, relevance established? Does the subpoena have a legitimate forensic purpose to this extent? This involves a consideration of the matter from the standpoint of [the issuing party]. (2) Is the subpoena seriously and unfairly burdensome or prejudicial? This is to look at the matter from the point of view of [the party subpoenaed]. [36] His Honour (at ALR 103) referred to the meaning of "apparent relevance" in the following terms: The test of adjectival relevance is satisfied if the material has apparent relevance. In my opinion, the documentation called for here could possibly throw light on the issues in the main case. In my opinion, adjectival relevance is established. In Kimberley Homes at 115 16, Hill J referred with approval to Beaumont J's test for relevance and emphasised that it was not necessary for the court to determine whether the documentation or material, the subject of the subpoena, would be admissible in any final hearing of the proceedings. Although it is not necessary for the material to meet the standards of relevance required of evidence adduced at trial, Hill J considered that it was appropriate to have regard to the issues in dispute, as they appeared in the pleadings. In Cosco Holdings Pty Ltd v Cmr for Taxation (1997) 37 ATR 432 , Spender J also considered Beaumont J's test of "adjectival relevance" and explained it (at 439) as follows: Notwithstanding the use of the word "possibly" in this paragraph, in my opinion, that word is not used in any speculative sense. I take his Honour's conclusion expressed in that paragraph as an acquiescence to the correctness of the submission that the material sought could reasonably be expected to throw light on some of the issues in the principal proceedings. It is not a question of looking at the documents to see if the documents might permit a case to be made. As is the case presently before the court, Spender J was there concerned with a submission that a request for documents (contained in a summons) amounted to merely a "fishing expedition".