See the full series on Subpoenas for Production and Notices of Non-Party Disclosure: Part 1 – Introduction; Part 2 – Relevance and Privilege; Part 3 – Using Documents for Other Purposes; Part 4 – Recovery of Costs and Negotiations.
How Relevant do the Documents need to Be?
The principles applying to the relevance of documents sought by subpoena in the following terms:[1]
The documents must be relevant to an issue raised on the pleading and be used to elicit documents to support the applicant’s existing case. It cannot be used for purposes of ‘fishing’ or for the purpose of determining a preliminary question as to whether the party has a supportable case (Hennessy v Wright (1888) 21 QBD 509), or to investigate the character of the opposing parties’ evidence (Griebart v Morris [1920] 1 KB 659, 666). The test for relevance does not require that a party demonstrate direct relevance to the contest between the parties. Rather, the documents must have some potential relevance to the pleadings as they stand.
This approach is often summarised the requirement for there to be a legitimate forensic purpose, so that there is a reasonable basis beyond speculation that the documents will be of assistance.[2]
Notably this differs from the more constrained wording for a notice of non-party disclosure[3] which does require direct relevance to an issue in dispute. The issue of direct relevant in that context was discussed in AIG Australia Limited v Sudale & Anor,[4] and in that case a request for non-party disclosure was upheld by the Queensland Court of Appeal to the extent that the documents were demonstrably relevant to an issue in dispute. This included each allegation where the defence did not admit the allegation due to being uncertain of the truth or otherwise.
Importantly, it is not simply enough to assert a lack of relevance to avoid compliance with a subpoena. While certainly the parties ought to seek to resolve differences, in most costs (provided conduct money has been tendered) a subpoena must be complied with unless the recipient seeks to have it set aside.[5] Different rules apply to a notice of non-party disclosure so that the recipient is not the part who commences the court process to determine whether it need be complied with.
Confidentiality, Privilege and Use of Documents
The usual process upon the issue of a subpoena is for the documents to be sent to the court.[6] The party producing the documents may object to those documents being inspected by a party, such as in relation to a claim for confidentiality or privilege.[7] Procedures are available under the relevant rules to object to the request or to request that the parties are not permitted to inspect the documents.
As a starting position, even without any such orders, documents produced in response to a formal court process are subject to an implied undertaking that they will not be used for any collateral purpose without leave of the court. This much is evident from Hearne v Street,[8] where it was confirmed that anyone using documents so produced for a secondary purpose was at risk of being found to be in contempt of court. This implied undertaking is generally referred to as a Harman undertaking, after Harman v Secretary of State for the Home Department.[9] It is also referred to, perhaps more accurately in Australia, as the Hearne v Street implied undertaking.
Orders sought will need to clarify why that is not enough to suitably protect the confidentiality of the documents. In addition to claims of privilege a common reason a further order may be requested is that individual representatives of the parties involved in the litigation may be in positions where becoming aware of the information is likely to be enough to cause commercial harm. Pricing data or customer details and order volume are examples where a court may determine that additional protective measures are required, normally in the form of specific orders confining the use of such documents to specified personnel. In the context of an arbitration, it has been held to be appropriate for the arbitrators to make that decision.[10]
[1] McIlwain v Ramsey Food Packaging Pty Ltd & Ors (2006) 221 ALR 785 (per Greenwood J at 785)
[2] Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
[3] Rule 242 UCPR(Q)
[4] AIG Australia Limited v Sudale & Anor [2022] QCA 160
[5] Rule 243 UCPR(Q); Rules 33.4 and 33.6 UCPR(NSW); Order 36B Rule 6 Rules of the Supreme Court (WA)
[6] See Rule 420 UCPR(Q) and Rule 33.3 of UCPR(NSW)
[7] See Rule 422B UCPR(Q) and Rule 33.9 of UCPR(NSW)
[8] Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
[9] Harman v Secretary of State for the Home Department [1983] 1 AC 280
[10] Xstrata Queensland Ltd v Santos Ltd & Ors; Santos Ltd & Ors v Xstrata Queensland Ltd [2005] QSC 323