Hatton v Attorney-General of Commonwealth of Australia & Ors

The case of *Hatton v Attorney-General of the Commonwealth of Australia & Ors* concerned an appeal regarding the inspection of documents produced under a subpoena duces tecum. The central dispute revolved around the extent of a judge's discretion to permit parties to inspect such documents, particularly when those documents were not immediately admissible as evidence.

The legal issue before the court was to determine the nature and scope of a judge's power to grant permission for the inspection of documents produced to the court under a subpoena. Specifically, the court had to consider whether this power was limited to allowing inspection solely for the purpose of tendering the documents as evidence, or if it extended to a broader judicial discretion to permit inspection in any way that would aid the proper decision of the issues by facilitating the elucidation of truth.

The court, referencing the reasoning of Moffitt P., held that a judge possesses a broad judicial discretion to permit the inspection of documents produced under a valid subpoena. This discretion is not confined to situations where the documents are immediately admissible or intended for direct tender into evidence. Instead, the power extends to allowing inspection for any purpose that genuinely aids in the proper conduct of litigation and the testing of evidence, including use in cross-examination or to establish preliminary facts for admissibility. The court emphasised that the primary purpose of a subpoena is to ensure the availability of relevant evidence, and restricting inspection would significantly diminish its utility. The judge's role is to ensure that the documents are relevant to the subject matter of the proceedings, and once apparent relevance is established, inspection should generally be permitted, even if the documents are not in admissible form or if the owner objects, provided the judge is satisfied there is no abuse of the subpoena process. The court clarified that this discretion is distinct from discovery and is exercised to facilitate the pursuit of justice between the parties, balancing the rights of strangers with the need for full disclosure of material evidence.