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.

Related Articles

View All
Commercial Law / Commercial Contracts & Agreements / Property & Development

Commercial and Industrial Property Tax Reform – What does it actually mean?

The reform will implement change progressively from 1 July 2024 and will look like this: This reform presents an...
Read More
Property & Development / Developments / Real Estate Agents

Property Law Changes – Land tax adjustments, vacant residential tax & windfall gains tax

A prohibition on the ability of a Vendor to pass on land tax liability assessment against a property The current...
Read More
Commercial Contracts & Agreements / Leasing & Lease Disputes / Property & Development

Exercising Options

If a lease is a retail lease, the provisions of the Retail Leases Act (Vic) (2003) will govern the exercise of option...
Read More
Construction / Owners Corporations / Planning

Occupancy permits – the ticking clock in defective building work

Where multiple occupancy permits are issued in relation to a building permit, which permit is the operative permit for...
Read More
Commercial Law / Property & Development / Developments

2023-2024 State Budget Recap

Acquisitions of Commercial and Industrial Properties From 1 July 2024, Land transfer duty (stamp duty) on commercial...
Read More
Adverse Possession / Commercial Law / Family Law

2024 Best Lawyers list out now

Tisher Liner FC Law are proud to announce that this year three of our Principals have been selected by their peers for...
Read More
Property & Development / Planning

The 1, 2, 3 of Property Law Reminders for NY2023

In so reflecting, reflecting on one’s property matters (current or proposed for the future) is also a worthwhile...
Read More
Planning / Property & Development / Construction

Section 9AC of the Sale of Land Act – What does ‘materially affect’ mean?

Throughout the registration period, a Plan of Subdivision may undergo many amendments from the proposed Plan which was...
Read More
Property & Development / Leasing & Lease Disputes / Real Estate Agents

CTRS protections has ended. What do you do now when a tenant defaults?

What can landlords do if a tenant breaches the lease If a tenant is in breach of a lease, the landlord may charge...
Read More
Property & Development

Early deposits. Your FAQ’s answered

This blog explores what is required in order for a Vendor to obtain their deposit prior to settlement and what a...
Read More
Property & Development / Real Estate Agents

Stamp Duty is now payable on late settlement and default penalty interest

The dutiable value of a property is the value in which stamp duty is determined to be due and payable at settlement by...
Read More
Property & Development / Commercial Contracts & Agreements

Market rent reviews under the Retail Leases Act 2003: Applying to the VSBC for the appointment of a Specialist Retail Valuer under the Act

In Part 1 of our blog series, we explored market rent reviews generally This is Part 2 of our 2 part blog series, in...
Read More