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Subpoenas

Applicable Principles

4.            The principles that govern whether a subpoena ought to be set aside are well known.

5.            The principles were canvassed in Webb v Wheatly [2015] VSC 153 as follows:

‘The following principles govern the application to set aside the subpoena:

(a) It is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;

(c) However, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is ‘on the cards’ or that there is a ‘reasonable possibility’ that the documents will materially assist the case of the party;

(e) … There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case;

…’ (citations omitted)

6.            In the Family Law jurisdiction, Cronin J in Dillon & Dillon [2012] FamCA 319 stated that:

‘[10]       The fact in issue in the property dispute is the entitlement of the respective parties to a division of whatever property either or both of them has having regard to the provisions of s 79 of the Act.  To test whether something would rationally affect the probability of a fact in issue requires consideration of the probative value of the material. In respect of material pursued under a subpoena, it must be asked whether that material would be reasonably expected to throw some light on the issue in the proceeding.’

7.            The principles relating to subpoenas against non-parties, and the relevance of documents, were also discussed by Cronin J in Papadopoulos v Papadopoulos (No.2) [2007] FamCA 1683. Cronin J reviewed a number of authorities which indicated that caution should be exercised in respect of any order for non-party provision of documents, however stated that it was appropriate to make an order if the production of documents would assist in the timely resolution of issues. Cronin J concluded by stating:

‘[50] Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers.  It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.’

Posted in: Derek Legal Blog at 28 July 20

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