ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd

ICAP Australia Pty Ltd (ICAP) sought leave to appeal from a decision of the Supreme Court of New South Wales that refused to set aside a subpoena issued by BGC Partners (Australia) Pty Ltd (BGC). The dispute concerned the scope and purpose of a subpoena issued by BGC in proceedings between the parties.

The primary legal issue before the Court of Appeal was whether the primary judge had applied the correct test in determining whether the subpoena was issued for a legitimate forensic purpose. Specifically, the court considered whether the primary judge erred in finding that the purpose of the subpoena was "fishing" and whether the test applied by the primary judge, which focused on whether the documents were likely to materially assist on an identified issue, was appropriate.

The Court of Appeal affirmed the principles governing the issue of subpoenas, noting that a subpoena will be set aside if it is an abuse of process, such as when it is used for the purpose of "fishing" for evidence. The court held that the primary judge had correctly applied the established legal principles and that there was no error in the finding that the subpoena was sought for an illegitimate purpose. The court found that the primary judge's assessment of the likelihood of the documents materially assisting BGC on an identified issue was a relevant consideration in determining whether the subpoena was for a legitimate forensic purpose.

Consequently, the applicants' summons for leave to appeal was dismissed with costs.