By Simon Abraham

31 July 2018

In litigation, subpoenas for production can be a very effective tool to obtain documents from third parties. However, if not properly drafted, the subpoenas can entirely backfire – and the costs consequences can be severe.

In a recent decision of the Supreme Court of Victoria, Brady Queen Pty Ltd and 280 Queen Street Pty Ltd & Anor (No 1) [2018] VSC 334, Justice Sifiris struck down a series of subpoenas on the basis that they were “a misuse of the jurisdiction” and “fundamentally misconceived”. Our clients (the subpoenaed parties) were awarded costs on an indemnity basis.

What caused those subpoenas to attract such scathing criticism from the Court?

Issue 1

The first problem was that the subpoenas were vague and far too wide. A subpoena for production must state precisely what documents must be produced. A subpoena for production should leave no uncertainty for the recipient as to how to comply, nor should it require the recipient to make “judgment calls” about what is included under the subpoena and what isn’t.

Issue 2

The second problem was that the documents sought under the subpoenas were not relevant to the issues in dispute. A subpoena for production must have a legitimate forensic purpose. This case concerned the valuation of a certain property development. The subpoenas sought the production of valuation-related documents relating to other property developments by the same developer. The Court did not view the documents sought as relevant.

Issue 3

The third problem was that the underlying purpose of the subpoenas were inappropriate altogether, thus constituting a “misuse of the jurisdiction”. The issuing party in this case had effectively sought to use the subpoenas to verify its own expert’s valuation assumptions – the legal equivalent of wanting to read someone else’s homework to check if yours is correct. As the Court noted: “Although valuation as such is a relevant issue, the manner of establishing it through expert evidence is solely a matter for the party calling the evidence. Calling on those related to the opposing party to assist because of other suggested similar projects is not open.”

 

The consequences of issuing a bad subpoena – like the ones in this case – are severe. Depending on the Court, an issuing party could potentially be ordered to pay a subpoenaed party tens of thousands of dollars in costs.

Our firm acted for two of the subpoenaed parties that successfully objected to and defended the subpoenas in the above mentioned case. Our firm has extensive experience in successfully issuing valid subpoenas and opposing invalid subpoenas.

 

If you require advice about subpoenas, please do not hesitate to contact our litigation team.

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