As an aside – principles to be considered when seeking to set aside a subpoena to produce As an aside – principles to be considered when seeking to set aside a subpoena to produce

As an aside – principles to be considered when seeking to set aside a subpoena to produce

7 December 2016 | General Insurance

The issuing of subpoenas to produce (and to provide evidence) is a key part of a party’s arsenal in the course of litigation. This NSW District Court decision  is a useful reminder of the principles the court will consider when deciding whether to set aside a subpoena to produce.   

In Issue

  • Under what circumstances will a court set aside a subpoena in part and/or in whole. 

The Background

Mr Allan Strickland (the plaintiff) served as a NSW police officer.  On 25 August 2011, while on duty at Broadmeadow Police Station, Mr Strickland alleged that he suffered mental harm when another police officer, Sergeant Z used his weapon in an unauthorised manner. It was alleged that this, in addition to previous recorded instances of this type of behaviour, exacerbated Mr Strickland’s existing post-traumatic stress disorder. Mr Strickland brought a claim against his employer, the State of NSW (the defendant), for damages for psychological injuries which he allegedly suffered during the course of his employment.

Mr Strickland solicitors issued a subpoena to produce on the defendant, seeking access to 17 categories of documents, including the NSW Police Force’s investigation files, personnel files, medical files, psychological files, career path and transfer files, discharge from police service files, and workers’ compensation files.

Pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) the defendant filed a notice of motion on 11 January 2016 seeking to set aside the subpoena on the basis of relevance and also claimed statutory protection or privilege from production. The plaintiff opposed the application.

The Decision at Trial

The defendant argued that the subpoenaed documents were insufficiently relevant to the proceedings and were in any event privileged from production.

The court reviewed the relevant case law and summarised the principles as follows:

  1. It is proper to set aside a subpoena if it is improperly issued and an abuse of process;
  2. In the case of third parties or “strangers” to the litigation, a subpoena represents an invasion of private rights and the court should “jealously consider any submission that the documents have no conceivable relation to the proceedings”;
  3. A subpoena will be found to be an abuse of process if:
    1. there is no conceivable relevance of the documents to the issues in the proceedings; or
    2. the subpoena represents a fishing expedition, or
    3. compliance with the subpoena is oppressive or vexatious in the sense of being seriously and unfairly burdensome to a party to whom it is directed;
  4. The test of relevance is a broad one, which includes the concept of "apparent relevance";
  5. A document is relevant to the proceedings if:
    1. the document "is likely to add in the end in some way or other to the relevant evidence in the case": see also  Waind v Hill (1978) 1 NSWLR 372, at p 382;
    2. it has a "sufficient apparent connection [to the proceedings] to justify their production or inspection": GB v Greater Western Sydney Area Health Service, at [70], following White v Tulloch (1995) 127 FLR 105;
    3. it "could possibly throw light on the issues in the main case ": See also Trade Practices Commissioner v Arnotts Ltd (1989) 21 FCR 306;

In applying these principles, the court noted that the proceedings were at an early stage. It considered that the plaintiff’s pleaded case was sufficiently specific to make the documents relevant for production.  The court concluded that there was no relevant prejudice to the defendant, particularly since the documents in question belonged to it, and because the trial was not imminent. The court noted that the defendant would have ample opportunity to meet a more precisely particularised case if the claim was amended after the produced documents were inspected and analysed. On that basis, the claim for privilege failed.

The court rejected the proposition that the scope of the subpoena in question should be set aside on the grounds that it was oppressive or unfairly burdensome or amounted to an abuse of process.

In grappling with the issue of privilege, the court noted that while  documents produced might be inadmissible in court, those documents might still be produced, for the purposes of assisting the parties in evaluating other evidence and material, regardless of the fact that they might be inadmissible themselves.  

Implications For You

This case is a helpful reminder that when deciding whether to set aside a subpoena to produce the court will look to balance the interests of the producing party and any strangers to the litigation but give significant weight to the objective of assisting parties to evaluate evidence and material for the purpose of making their forensic decisions on the prosecution of a claim.

In this case, since the proceedings were at any early stage and the documents were readily available, the court found that it would not be burdensome for the defendant to produce to documents requested. 

Strickland v State of NSW [2016] NSWDC 30

Co-authors: Simon Black, Thomas Byrne & Courtney Law 

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