The Humble Subpoena – one of the most powerful pre-trial strategies…but also one of the most crippling if used incorrectly

4-June-2020 Commercial Disputes By Jamal Bakalian

Read on to find out how the decision in Vella v Organic Fertilisers (Leppington) Pty Limited [2020] NSWSC 669 recently decided by the Supreme Court of NSW on 21 May 2020 considered whether or not the Subpoena issued was truly appropriate or just vexatious.

As a Solicitor, I don’t think I have enough fingers to count how many times a client has said to me ‘Can’t you just subpoena them! That will solve the problem’ with the hope that serving a person or an entity with a Subpoena will provide the client with the answers or documents they need to be successful in their case.

However, issuing a Subpoena must be done with very careful consideration as Subpoenas are an important and delicate element of the pre-trial strategy in a case…and getting this step wrong in litigation could cost you, not just in dollars.

A skillful and strategic Solicitor will ensure that the Subpoena is drafted in such a way that it will be accepted by the Court and leaves little room for complaint from the party to whom you are issuing the Subpoena.

The recent Supreme Court of NSW of Vella v Organic Fertilisers (Leppington) Pty Limited [2020] NSWSC 669 handed down on 21 May 2020, looked at just that issue – whether or not the Subpoena issued in that case was appropriate.

Facts

Peter Vella, the Plaintiff in this case, sued his employer Organic Fertilisers (Leppington) Pty Limited (Organic) for damages for injuries that he sustained due to what he says was an unsafe system of work during 2011 to 2014. As part of this case, Organic P/L issued Mr Vella with a Subpoena which was to be returnable (answered) on 18 May 2020.

Dispute

However, Mr Vella’s Solicitor said that the Subpoena was ‘oppressive, non-specific and seeks documents protected by legal professional privilege in circumstances where that privilege has not been waived.’

On the other hand, Organic P/L argued that they had a legitimate forensic purpose in requesting the documents that they did via the Subpoena.

Court’s Consideration

Given the dispute, the Court was required to determine parts of the Subpoena that requested the following documents from Mr Vella:

  1. All file notes in relation to Mr Vella’s conferences with his Solicitor
  2. All legal advices provided by Mr Vella’s Solicitor
  3. All written legal advices provided by Barristers in relation to Mr Vella’s legal proceedings
  4. All written instructions pertaining to Mr Vella’s legal proceedings
  5. All written instructions from Mr Vella in relation to settlement of the case

Court’s decision

The court decided that items (1) to (4) of the Subpoena should be set aside and were not allowed to be pressed by Organic P/L. However, in relation to (5) the Court decided that Mr Vella (due to a series of actions and decisions) had waived his legal privilege over those documents and they could be produced.

Court’s Reasoning

The documents from (1) to (4) of the Subpoena above, were considered by the Court to be far too wide and not appropriately confined to correspond to the forensic purpose that was being asserted by Organic P/L. The Subpoena was not specific enough in relation to the documents requested at (1) to (4).

Take Away Lesson

Be careful when using subpoenas and choose your Solicitors wisely.

When commencing litigation whether it be in the Local Court or the Federal Court or the Supreme Court, call Streeterlaw to ensure you have the most precise and efficient legal team on your side. Streeterlaw Solicitors are strategic and utilise the pre-trial procedures that are available during litigation in the most effective and cost-conscious way possible to ensure that your case is always progressing in a way that benefits you and does not disadvantage you.

Call Streeterlaw Solicitors today on 02 8197 0105 for advice about commencing proceedings or progressing your case.

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