One of the tools which parties can use in order to obtain documents is issuing a section 42AA subpoena for production of documents to the Prothonotary in the Supreme Court (or the Registry in the County Court) prior to the trial in a proceeding. However, there are specific circumstances in which an addressee of a subpoena which seeks production of documents can lodge an objection to production of the documents or to inspection of the documents by any of the parties in the proceeding or that the documents will be produced but subject to redaction of certain aspects of the documents for specific reasons (such as confidential and irrelevant information is contained in the documents).
In respect of an objection to production (or inspection) of documents, the following principles are relevant:
- The issuing party must identify the legitimate forensic purpose for which it is seeking access to the documents – a legitimate forensic purpose means that the documents are relevant, and it is on the cards that they will materially assist the issuing party’s case1. A legitimate forensic purpose does not exist simply for the issuing party to determine their relevance in the proceeding. The subpoena must not cast the net wider than is necessary to catch the documents required to satisfy the legitimate forensic purpose.
- As to what constitutes relevant documents, the Court must be satisfied that they are potentially relevant pursuant to section 55(1) of the Evidence Act 2008 (Vic).
- The Schedule which sets out the documents for production must be identified with reasonable particularity including limiting the timeframe so that it does not require an addressee to search for documents far and wide and for a significant period of time – not specifying a timeframe or seeking documents for a voluminous number of years can be characterised as oppressive where it requires an addressee to undertake a search of an excessively large number of documents.
- If an addressee of a subpoena has a legitimate claim for confidentiality or similar grounds, upon producing the documents it may request that the Court exercise its discretion and order that the parties only inspect redacted copies of the documents.2
- In accordance with rule 42.11 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), the Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena. The purpose of this rule is intended to compensate a party who has gone to the trouble and expense of complying with a subpoena. If the addressee objects to the production or inspection of documents, the issue of costs will be determined upon the basis of whether the objections were based on sufficiently arguable grounds.
- In some recent matters, we have:
- assisted a client with responding to a subpoena by formulating the response to the Court where the documents simply did not exist and never had existed at any time – the party sought documents regarding payments to a defendant in Court proceedings, but the defendant had never been an employee of the company, nor had he received any payments from the company; and
- reviewed a subpoena issued to an accountant in respect of an entity which was not a party to the proceedings and advised as to what documents were obliged to be produced by the addressee in each category of documents sought – the types of documents sought were relatively narrow in relation to one specific entity for particular financial years. The number of documents for production were reduced as the specific documents sought did not exist for all of the financial years specified in the schedule; and
- obtained a costs order for a client who lodged an objection to the inspection of documents upon the basis that the contents were confidential and most of the contents were relevant to the issues in dispute in the proceeding – as the addressee, the client was entitled to their reasonable expenses of complying with the subpoena which included Counsel’s fees and the solicitor’s costs for preparing Affidavit material, attending the objection hearing and other necessary costs of dealing with the objection to the subpoena upon the grounds of confidentiality.
Catherine Pulverman of FCW Lawyers has considerable experience in this area and has acted for clients, including corporate entities and accountants, in lodging an objection in respect of the documents sought to be produced under the subpoena. Catherine would be happy to provide any necessary advice or act in relation to service of a section 42AA subpoena (or other subpoenas) and lodging any necessary objection to ensure that the most cost-effective outcome is achieved.
1 Madafferi v R  VSCA 1 at ; Volunteer Fire Brigades Victoria v CFA (Discovery Ruling)  VSC 573 at [55(c)]
2 Gunns Ltd v Marr  VSC 464, [30-31], Kaye J; Hera Project Pty Ltd v Bisognin (No 4)  VSC 270,  Riordan J