Australia / May 15 2024
In Australia, applications for the production of documents or the provision of evidence by third parties to an arbitration are usually decided ex parte and on the papers. While any person with a sufficient interest may apply to set such a subpoena aside, there is no practical or legal requirement to give such parties an opportunity to oppose the issue of the subpoena.
In a succinct but illuminating judgment, Croft J distilled the legal principles applicable to obtaining a subpoena to third parties for the production of evidence in the course of domestic arbitration. In Bonacci Infrastructure Pty Ltd v John Holland Pty Ltd [2023] VSC 740, his Honour looked to the Commercial Arbitration Act 2011 (Vic) (CAA) and the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) (Rules) to define two gates to the issue of subpoenas to third parties in the course of domestic arbitration pursuant to the CAA.
First, section 27A of the CAA requires the tribunal to autho rise a party to apply for the issue of a subpoena by the courts. That subpoena may require attendance at a hearing, the production of documents, or both. The tribunal’s decision permitting a party to apply for a subpoena should clearly specify the terms of the inquiry as against any third party, such as the limits to the disclosure to be ordered. In practice, this is often achieved by asking the tribunal to review and approve a draft form of the subpoenas, and then recording that approval in a direction or order.
Second, r 9.14 of the Rules require the applicant to specify (by way of affidavit) the terms upon which the tribunal has authorised a subpoena. While its job is not to ‘rubber stamp’ the issue of a subpoena authorised by a tribunal, the court will have regard to the reasonableness of the issue and terms of any subpoena requested by a party to the arbitration and authorised by the tribunal. While exercising such discretion, the court should consider whether the tribunal has properly determined that the evidence sought is relevant to the issues in the proceeding, and if the subpoena is being issued for a legitimate forensic purpose, with consideration of the evidence of the reasonable grounds upon which the application is founded. In the early stages of an arbitration, it can be difficult to identify with precision the issues in dispute. This is particularly the case when the parties adopt a memorials approach to presenting evidence and submissions. An agreed list of issues often provides the scaffolding for the tribunal to be satisfied that the subpoena is sought for a relevant purpose (and then the court to be satisfied the tribunal has properly determined that matter).
If compliance with the Rules and s 27A of the CAA has been demonstrated, it will likely be reasonable for the court to issue a subpoena on the terms sought.
