Case: Botany Bay Instrumentation &amp; Control Pty Ltd v Stewart [1984] 3 NSWLR 9
Outcome: considered
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 stage which a proceeding has reached, and the issues to be resolved at interlocutory applications, are matters of immediate relevance to whether an order should be made for a subpoena or for a subpoena to be set aside: Re Universal Press Pty Limited v Provest Ltd (unreported, FCA, Hill J, G136 of 1989, 14 July 1989). Hill J there observed: [38] With respect, the interests of justice and efficiency, will in most cases be best served if subpoenas are issued requiring documents to be produced at a time before the hearing but it does not follow from that that it will ordinarily be appropriate in the interest of justice for a subpoena to be made returnable before discovery itself has been given by the parties to each other or indeed before, as in this case, the defendant has even filed a statement of defence in the proceedings. Rather it seems to me, so that the issues are defined, that it will be a rare case indeed where the interests of justice will require a subpoena to be issued until the ordinary interlocutory steps have been completed. [39] It must ultimately be borne in mind that a subpoena is intended to require the production of documents so that those documents can be available for tender during a trial and for the purposes of it. I use trial as encompassing of course interlocutory motions should such motions be relevant. In this context I would refer to what was said by Bowen LJ in Elder v. Carter [(1890) 25 QBD 194] (at p 201, 202): "But I am as certain as one can be of anything with regard to practice, that does not intend to enact that at any stage of a proceeding a judge may make, subject to his discretion, an order on a third person for production of a document which belongs to the third person, unless the production of it at that moment is a thing to which the parties are entitled for the purpose of justice; and you are not entitled, for the purpose of justice at any moment during suit, simply because you are a litigant, to see what is in the possession of a third person and to have production of it. Such a thing was never heard of ..." See also: Botany Bay Instrumentation &amp; Control Pty Ltd v Stewart [1984] 3 NSWLR at 101 per Powell J.