Responding to a subpoena – is it always necessary to lay everything bare?

2 March 2020
Susan Forrest, Partner, Brisbane

In Harvard Nominees Pty Ltd v Tiller,[1] the Federal Court of Australia was tasked with considering the grounds on which a subpoena to produce may be set aside.  Interestingly, the subpoenas in question were made for third parties (which were related to the respondents) to produce financial records and other documents to the Court in the context of a breakdown in a commercial relationship.

The respondents applied to set aside 7 of those subpoenas.

Here, the issues in dispute in the proceeding relevant to the subpoenas broadly relate to:

    1. farming land held by Harvard Nominees Pty Ltd (Harvard) in Western Australia;
    2. the sub-lease by Harvard of that land to Mr and Mrs Nicoletti, then subsequently to Mr and Mrs Tiller and finally to Mr Tiller and Dimension Agriculture Pty Ltd (Dimenson) (a company incorporated by Mr Tiller);
    3. the irretrievable breakdown of the commercial relationship between the director of Harvard (Mr Caratti) and Mr Nicoletti;
    4. the financial position of Mr Tiller and his association with Mr Nicoletti;
    5. the subsequent involvement of Mr Nicoletti with Dimension Agriculture Pty Ltd;
    6. alleged representations made by Mr Tiller to Mr Caratti about Mr Nicoletti and his involvement with Dimension, which are said to be false; and
    7. the rescission by Harvard of the sub-lease over the farming land.

On application by Harvard, a number of subpoenas were issued by the Federal Court of Australia requiring the production of financial records and related documents concerning numerous entities related to (sometimes questionably so) the respondents.  The respondents then applied to have 7 of those subpoenas set aside.

The principal ground relied on by the respondents in their application was, generally speaking, that the documents sought for production were not all relevant to the issues in dispute.  Further grounds of objection, being oppression and confidentiality, were also raised.

Harvard argued that the documents were relevant to the financial position of Mr Tiller, his potential need for financial backing from Mr Nicoletti and the truth or falsity of certain alleged representations made by Mr Nicoletti to Mr Caratti.

After conducting an analysis of the facts and identifying the issues in dispute, Justice Jackson found that although the subpoenas served a legitimate forensic purpose, the scope of 6 of the 7 subpoenas was too wide.  This is because the documents were not confined to the subject matter of the dispute, or if they were confined, the subpoena was unacceptably ambiguous or failed to limit the request for production to dates material to the dispute.

His Honour ordered that 6 of the 7 subpoenas be set aside, with leave granted for Harvard to file amended subpoenas addressing the deficiencies identified.

This decision is a valuable reminder of the use and purpose of subpoenas to produce and the test of relevance – concisely put: a document sought is relevant if it is “reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case.”[2]

To complete such an assessment, it is necessary to first understand the issues in dispute in the pleadings, which can require the assistance of a legal practitioner.  Once relevance has been determined, it is then prudent to consider whether there are other grounds available to have the subpoena set aside.  For example, if the production of documents is oppressive or if the documents are of a confidential nature.

Any application to set aside the subpoena must be filed within the time permitted by the relevant court rules, and early referral to your legal practitioner for advice is recommended.


[1] [2019] FCA 1672.

[2] Seven Network Ltd v News Ltd (No 5) [2005] FCA 510; (2005) ALR 147.


Authored by:

Susan Forrest, Partner
Amy Bax, Senior Associate

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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