Subpoenas and the considerations for setting them aside were considered recently in Walters v Perton [2019] VSC 356.

The court in its probate jurisdiction, was considering an application to set aside two subpoenas under r 42.04 Supreme Court (General Civil Procedure) Rules 2015, which provides that a court may set aside all or part of a subpoena which is an abuse of process. The applicant submitted that there was no legitimate forensic purpose for the subpoenas.

At [30] the court succinctly stated the principles which govern an application to set aside subpoenas in civil cases, with reference to the leading authorities on legitimate forensic purpose. This is a useful statement of the principles and summary of the cases. At [30] the court noted:

(a) the subpoena process under Order 42 should not be used as a substitute for discovery or non-party discovery;

(b) 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) except in cases where the subpoena is plainly too broad and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether a legitimate forensic purpose exists;

(d) 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) the subpoena must sufficiently describe the documents to be produced so as to not require the recipient to make a judgment about the documents being sought and must not be oppressive or fishing (a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted);

(f) The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. 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. The test of relevance, however, may be a general one, particularly where the Court has only a general idea of the nature of the evidence which may be led as relevant to an issue or as to credit of an expected witness;

(g) A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in paragraph (c) must be satisfied; and

(h) Where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.

The court also commented on legitimate forensic purpose in probate proceedings specifically. The court noted that legitimate forensic purpose in probate proceedings may be informed by the court’s inquisitorial role which requires a greater supervision and control of proceedings than adversarial common law proceedings.

This case has been added to the By Lawyers Reference Guide 101 Subpoena Answers.