Legal Test to Set Aside a Subpoena

In McEwan v Rains & Ors [2023] QCA 135 (30 June 2023), the Queensland Court of Appeal addressed the legal test to be applied in setting aside a subpoena.  Bond JA (McMurdo JA and Callaghan J agreeing) wrote:

[2]  On 4 April 2019, and on the complaint of the first respondent — who is an investigator employed by the Australian Taxation Office (the ATO) — the appellant was charged by way of complaint and summons filed in the Magistrates Court with the following 30 charges (the ATO Charges):

(a) one count of attempting to dishonestly obtain a financial advantage contrary to s 134.2(1) and 11.1 of the Criminal Code 1995 (Cth);

(b) 11 counts of influencing a Commonwealth public official contrary to s 135.1(7) of the Criminal Code 1995 (Cth); and

(c) 18 counts of forgery and uttering contrary to s 488 of the Criminal Code 1899 (Qld).

[3]  By originating application filed 3 August 2022, the appellant commenced a proceeding in the Supreme Court against the first respondent, the ATO, and the Commonwealth Director of Public Prosecutions (the CDPP). Although she was the applicant in that proceeding, it will be convenient to refer to her as the appellant throughout this judgment. The three respondents to the originating application are also the three respondents to this appeal.

[4]  The originating application relevantly sought a permanent stay of the ATO Charges or, alternatively, orders setting the proceedings aside. The appellant contended that the prosecution of the ATO Charges was oppressive, involved prosecutorial misconduct, invoked the Court’s procedures for an illegitimate purpose, and brought the administration of justice into disrepute.

[5]  At the time the appellant filed her originating application, a committal hearing in the Magistrates Court in relation to the ATO Charges had been listed to commence in October 2022. It has since been adjourned to a date to be fixed after, amongst other things, the determination of the appellant’s stay application.

[6]  In anticipation of the hearing of her originating application in the Supreme Court, the appellant caused the issue of nine subpoenas requiring the attendance of witnesses at the hearing of her application, both to give evidence and to produce documents. However, a few days before the hearing, the respondents sought and obtained orders from the primary judge that each of the subpoenas be set aside. The appellant having intimated an intention to appeal those orders, the hearing of the appellant’s originating application was adjourned. A new hearing date has not yet been set.

[7]  By the present appeal, the appellant, who represents herself, seeks to have set aside the orders made by the primary judge in relation to the subpoenas. For the following reasons, the appeal should be allowed, and the orders made by the primary judge set aside.

…

The application determined by the primary judge

[35]  By applications filed on 8 and 9 September 2022, and pursuant to r 416 of the Uniform Civil Procedure Rules 1999 (Qld) the respondents sought orders setting aside the subpoenas either entirely or in part, on the basis that they disclosed no legitimate forensic purpose; they were a clear exercise in fishing; they amounted to an attempt collaterally to attack and undermine the committal hearing; and they were otherwise an abuse of process.

[36]  On 15 September 2022, the primary judge acceded to those applications and ordered that each of the subpoenas be set aside. The stay application which had been listed to be heard in the Supreme Court on 20 September 2022 did not proceed. Nor did the committal hearing which had been scheduled to commence in the Magistrates Court on 18 October 2022. As has been mentioned, the appellant having intimated an intention to appeal the orders setting aside the subpoenas, the stay hearing was adjourned. Similarly, the committal hearing was adjourned to a date to be fixed after, amongst other things, the determination of the stay application.

[37]  The primary judge referred to R v Moti [2009] QSC 293 at [9] to [11] where Martin J applied the reasoning of Beazley JA in Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at [59] to [69]. The primary judge noted that the reasoning in Chidgey had been approved by the New South Wales Court of Criminal Appeal in Tropic Asphalts Pty Ltd v Snowy Monaro Regional Council [2021] NSWCCA 24 at [30] to [32].

[38]  Having regard to those authorities the primary judge found that the relevant test was two-fold. First, the applicant must identify a legitimate forensic purpose for which the evidence is sought. Secondly, the applicant must establish that it was “on the cards” that the evidence will materially assist the applicant’s case. The second aspect identified by his Honour led him to conclude that mere relevance was not enough. The applicant must be able to indicate that the evidence was relevant in the sense that it may assist the applicant’s case.

[39]  The primary judge noted that the appellant’s forensic purpose was to establish the matters about which she complained and to advance the grounds on which she sought the permanent stay of the ATO Charges. He summarised the appellant’s case in the manner recorded at [23] above.

[40]  His analysis then proceeded in the following way:

(a) The brief of evidence for the State Fraud Charge and the ATO Charges was not the same.

(b) Although there was some overlap in the evidence between the State Fraud Charge and the ATO charges, the two prosecutions were distinct in that the former involved Apagein Biotech and the latter involved Venika Biotech and there were different allegations of fraudulent or dishonest conduct.

(c) Even if the appellant could establish some valid criticism of the way in which the State Fraud Charge was prosecuted, that would not be enough to impugn the conduct of the proceedings in respect of the ATO charges.

(d) The effect of the appellant’s submission was that the conduct of the investigators and prosecutors of the State Fraud Charge must necessarily mean that there had been similar misconduct in the ATO charges. But the applicant could not demonstrate any real support for that submission.

(e) Although much of the evidence sought by the subpoenas was sought in order to establish the appellant’s complaints about the conduct of the prosecution of the State Fraud Charge, there was no reason to believe that it was on the cards that any of the first respondent or the representatives of Brisbane Angels who had been subpoenaed would give evidence that may assist the appellant in proving that they, together, conspired to make false accusations giving rise to the State Fraud Charge. His Honour inferred that human nature was such that those persons would probably give explanations which did not admit of any conspiracy or any knowledge that false accusations had been made.

(f) Based on similar assessment of human nature, his Honour was not persuaded that it was on the cards that any of the employees or officers of the QPS, the CDPP or the Queensland DPP who had been subpoenaed would give evidence that may assist the appellant in proving that they had improperly or maliciously prosecuted the State Fraud Charge.

(g) Further, even in the unlikely event that those witnesses gave evidence relevant to proving the appellant’s complaints about misconduct relating to the State Fraud Charge, his Honour found that the absence of a demonstrated connection between the conduct of the prosecution of the State Fraud Charge and the asserted bases for staying the prosecution of the ATO charges meant that the appellant had not demonstrated that it was on the cards that such evidence would materially assist her on the stay application.

(h) By a similar reasoning process, his Honour concluded that he did not accept that it was on the cards that any of the subpoenaed witnesses would give evidence that would materially assist the appellant on the stay application on the issue of establishing the complaints she made concerning disclosure in relation to the State Fraud Charge and in relation to the ATO charges.

(i) His Honour specifically considered the subpoenas to witnesses who might give evidence as to the extent of disclosure of the record of the appellant’s compulsory interview bore the character of a fishing expedition. And, in any event, he did not think that any evidence which might reveal such inappropriate disclosure or sharing would materially assist the appellant’s stay application.

(j) Finally, his Honour referred to but did not form any conclusion on the suggestions advanced by the respondents that the appellant issued the subpoenas for some purpose unconnected with the hearing and determination of her stay application, or that the subpoenas were an abuse of process because they formed part of a collateral attack on the committal process.

(k) He concluded that he was not satisfied that there was a proper basis for the subpoenas, as it was not on the cards that evidence that might be given by the subpoenaed witnesses might materially assist the appellant on her stay application. On that basis he ordered that all the subpoenas be set aside.

Consideration

[41]  The decision of the primary judge was an exercise of judicial discretion in an interlocutory decision concerning questions of practice and procedure. Although there is no absolute rule and each case must be considered in light of its own particular circumstances, generally an appellate court will not interfere with such decisions unless, in addition to error of principle, the appellant demonstrates that the order will work a substantial injustice to one of the parties: see Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd [2021] QCA 198 at [13] and Beale v Chief Health Officer [2022] QCA 188 at [27].

[42]  The appellant’s notice of appeal did not identify the nature of the error which she contended that the primary judge made. However, it appears from the tenor of her written and oral submissions that she suggests:

(a) first, that the primary judge erred in his identification of the principles which apply on an application to set aside subpoenas;

(b) second, that making that error led him to make an erroneous assessment of whether a legitimate forensic purpose might be served by the subpoenas; and

(c) finally, that the erroneous assessment will cause her injustice.

[43]  I will first address the question of the applicable legal principles.

[44]  I have explained how the primary judge identified what he regarded to be a two-fold test based on his application of principle derived from the New South Wales Court of Appeal decisions of Chidgey and Tropic Asphalts. Unfortunately, his Honour’s attention was not drawn to the fact that in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 , which was a decision subsequent to both Chidgey and Tropic Asphalts, the New South Wales Court of Appeal reconsidered the line of previous authorities, distinguished Chidgey and articulated the considerations relevant to such an application rather more broadly than recorded by his Honour.

[45]  The approach articulated in Blacktown City Council has since been referred to with approval on multiple occasions in the New South Wales Court of Appeal and Court of Criminal Appeal and referred to with approval in other superior courts.

[46]  The following propositions may be derived from Blacktown City Council:

(a) The power of the Court to set aside a subpoena, in whole or in part, is an instance of its power to regulate its processes and, in particular, to intervene in a case of abuse of its process.

(b) The exercise of that power is not to be restricted to defined and closed categories. Accordingly, the use of the language of “tests” for the setting aside of subpoenas should be avoided.

(c) Examples justifying the exercise of power to set aside subpoenas include:

(i) where the subpoena is not used for a pending trial hearing or application;

(ii) where compliance with the subpoena would be oppressive in some way;

(iii) where the subpoena has not been issued in good faith for the purpose of obtaining relevant evidence and the respondent to the subpoena is unable to give relevant evidence;

(iv) where the subpoena has been used to obtain further discovery against a party or against a third party;

(v) where the subpoena has been issued for an impermissible purpose, for example “fishing”;

(vi) where the evidence sought lacks apparent relevance.

(d) A subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose.

(e) However, a subpoena will be presumed to have been issued for a legitimate forensic purpose—

(i) if the documents sought are “apparently relevant” to the issues in the proceeding; or

(ii) if the documents sought are capable of providing a legitimate basis for cross-examination, or go to credit, and notwithstanding that they are inadmissible according to the rules of evidence; or

(iii) if it can be seen that the documents sought to be produced by way of subpoena will (or there is a reasonable basis beyond speculation that they will) materially assist on an identified issue.

(f) As to “apparent relevance”:

(i) The conception refers to adjectival rather than substantive relevance. It is to be understood as conveying the notion that the evidence sought could reasonably be expected to “throw some light” on some of the issues in the proceeding.

(ii) Apparent relevance should be able to be ascertained by an examination of the description or identification of evidence sought by the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena.

(g) Moreover, it will not be fishing, manifesting an illegitimate forensic purpose, to seek to subpoena apparently relevant documents for the purposes of cross-examining an important witness, even if the subpoenaing party does not know whether those documents will assist or advance its case. A party may be materially assisted in its case by knowing what apparently relevant documents say, even if those documents may not ultimately materially advance that party’s case.

(h) An issuing party’s inability to show that the subpoenaed documents are likely to assist its case will not necessarily mean that the subpoena has not been issued for a legitimate forensic purpose, and will not automatically require either that the subpoena be set aside or that access to the documents produced be refused.

(i) However, the absence of any apparent relevance of the documents sought to be subpoenaed to the issues in the case may warrant a conclusion of a lack of legitimate forensic purpose and be a sufficient ground to set aside a subpoena or part of a subpoena.

[47]  I would follow Blacktown City Council, at least, as Brereton J noted, in civil cases and in the absence of any question of public interest immunity. I would caution that, since the juridical basis for the power to set aside a subpoena is that identified, and “legitimate forensic purpose” is to be treated as the converse of “abuse of process”, the views there expressed, and those recorded above, are not to be treated as if they were expressed in a statute. The Court’s power should not be so confined. Further, relevant considerations might not all point one way, so that the exercise of the discretion might require the formation of an evaluative judgment. For example, in a particular case the documents sought might be apparently relevant, but the subpoena expressed in such vague terms that it would be oppressive to require the recipient to comply with it, thereby necessitating an order that it be set aside.

[48]  Notwithstanding those caveats, it is evident in this case that the primary judge took too narrow an approach to the resolution of the issues which were relevant to the exercise of his discretion. His Honour erred by concluding that mere relevance was not enough and that the appellant had to demonstrate some degree of likelihood that the evidence sought to be obtained by the subpoena would, in effect, advance her case. The discretion of the primary judge miscarried.

[49]  Having regard to the principles identified at [41], the disposition of the appeal ultimately turns on whether that error worked a substantial injustice to the appellant. Given the way the respondents’ arguments were advanced before this Court, that question must be evaluated by assuming that the appellant has an arguable case for the relief she seeks by originating application. On that assumption, it is clear that the orders of the primary judge have caused the appellant a substantial injustice. By applying too narrow an approach to the question before him, the primary judge set aside the subpoenas in their entirety when the apparent relevance of at least some of the testimonial and documentary evidence sought was undeniable, once apparent relevance is understood in the appropriate sense.

[50]  The orders which the primary judge made should be set aside. The subpoenas which were set aside have no present utility because they all required attendance and/or production of documents at a hearing to take place in September 2022. They have in any event been set aside by orders of a superior court and although those orders will be set aside, no order has been sought from this Court the effect of which would somehow re-enliven the subpoenas. Events having now moved on, a new date for the hearing will have to be fixed. The appellant will have to give consideration to the extent to which she wishes to seek the issue of fresh subpoenas, no doubt bearing in mind the considerations articulated in these reasons. Similarly, if and when the appellant causes fresh subpoenas to be issued, the respondents will have to evaluate by reference to the considerations articulated in these reasons whether and, if so, to what extent they repeat the application they previously made.

…

(emphasis added)

A link to the case can be found here.